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^ * • . o * ^ O * . * 






THE COURTS 
HE CONSTITUTION 
AND PARTIES 



STUDIES IN CONSTITUTIONAL 
HISTORY AND POLITICS 



By 



Andrew C. McLaughlin 

Professor of History in the 
University of Chicago 




THE UNIVERSITY OF CHICAGO PRESS 
CHICAGO, ILLINOIS 



,143 



Copyright 1912 By 
The University of Chicago 



All Rights Reserved 



Published August 1912 



Composed .and Printed By 

The University of Chicago Press 

Chicago, Illinois, U.S.A. 



£C!.A320005 



PREFACE 

The author of this volume believes that it 
includes a discussion of cardinal principles and 
facts in American constitutional history. The 
first article deals with the origin of the prin- 
ciple that courts can declare laws void. The 
second and third treat of the vital institutions, 
which, though not recognized by written con- 
stitutions, came into existence as opportunity 
was offered to realize popular government; 
within themselves political parties embodied 
the problem of popular government, for, if the 
people could not control the party management 
or the " organization/ ' they could not make 
their own desires effective. The fourth article 
discusses the changing theories of political 
philosophy, which, as the years went by, fur- 
nished foundations for differing theories con- 
cerning the nature of the Union. The fifth 
shows that American legal order took its rise in 
the theory of compact and of individual right 
and in the belief that imperial order itself 
should rest on law — two theories or principles 
that now confront the reformer seeking to 
readjust social systems and to make them 



vi Preface 

conform to what he considers present social 
demands. 

All except the first, the longest of these papers, 
have appeared elsewhere in print. I hope the 
republication is justified by their value and 
interest and by the fact that the five papers in 
combination constitute a discussion of the most 
fundamental problems of constitutional history. 
The paper on "The Significance of Political 
Parties" appeared in the Atlantic Monthly and 
is here reprinted with the courteous permission 
of the publishers of that magazine. The paper 
on "Political Parties and Popular Government' ' 
was given as an address before the Phi Beta 
Kappa Society of Indiana University in June, 
1911. "Social Compact and Constitutional 
Construe tion" was printed in the American 
Historical Review. The last paper was printed 
in the Michigan Law Review and in the Pro- 
ceedings of the Fiftieth Anniversary of the 
Constitution of Iowa. I wish to express my 
appreciation of the assistance of one of my 
students, Mr. Arthur P. Scott, in the search for 
the early court decisions, which either involved 
the principle that laws may be declared void or 
stated principles of political philosophy. 

A. C. McL. 

Chicago 
August 1, 191 2 



TABLE OF CONTENTS 



PAGE 



I. The Power of a Court to Declare a 
Law Unconstitutional 3 

II. The Significance of Political Parties hi 

III. Political Parties and Popular Govern- 
ment 151 

IV. Social Compact and Constitutional 
Construction 189 

V. A Written Constitution in Some of Its 
Historical Aspects 245 



I. THE POWER OF A COURT TO DE- 
CLARE A LAW UNCONSTITUTIONAL 



THE POWER OF A COURT TO DECLARE 
A LAW UNCONSTITUTIONAL 

A SURVEY OF THE HISTORICAL BACK- 
GROUND 1 

In our political and partisan discussions of the 
present day we appear to be much concerned 
with the power and the tendencies of the courts. 
Of particular interest to students of politics and 
to practical politicians alike is the power of 
the courts to declare a law unconstitutional. 
The reason for this interest and for the political 
problem involved is not far to seek and is so 
well known that it is not necessary here to give 
the subject more than a passing word. We 
have in recent years passed into a new stage of 
industrial and social being; we have changed 
our business methods and our habits of mind; 
we have outgrown in business activity and in 
social sentiment the conditions of individualism 
that were dominant in the early days of the 
Republic and for decades thereafter; we are 
face to face with the fact that society has duties 

*A portion of this paper was delivered as a presidential 
address before the Mississippi Valley Historical Association, 
May 23, 1912. 



4 The Courts, the Constitution, and Parties 

and responsibilities and that any principles 
which set up isolated individual right as over 
against community interest are at least fraught 
with danger, if they are not pure anachro- 
nisms; we have come to the time when men 
believe that a good government is one that can 
do things and will do things, and not merely 
refrain from doing things. In this changing 
order the courts have been tested to the utmost; 
the ingenuity of judges has been strained in 
efforts to accommodate the law, and inherited 
principles of individual right under the law, to 
the demands for the recognition of social justice. 
This whole discussion is fundamental and of 
deepest importance, arising, not from any mere 
passing ferment on a trivial matter, but from a 
consideration of vital needs in the state. 

The power of the federal Supreme Court to 
declare a law of Congress unconstitutional has 
of late been receiving special attention from 
students of history and politics. A number of 
able articles have been written on both sides 
of this question. 1 The intent of this paper is 

1 Some of the more important treatments are found in J. B. 
Thayer, Cases on Constitutional Law, I; J. B. Thayer, Legal 
Essays, C. H. Mcllwain, The High Court of Parliament and Its 
Supremacy; C. A. Beard, "The Supreme Court, Usurper or 
Grantee," Pol. Sci. Quart., XXVII (March, 1912); Brinton 
Coxe, Judicial Power and Unconstitutional Legislation; Austin 



Power to Declare Law Unconstitutional 5 

not to show that the Supreme Court usurped 
authority in 1803 when Marshall declared a 
portion of the Judiciary Act invalid or to prove, 
on the other hand, that the power exercised by 
Marshall was clearly within the authority of 
the court; my intention is rather to trace in a 
broad and general way the historical facts and 
forces which preceded that decision; to give 
as far as possible in a few words the historical 
background, which will explain, if it does not 
justify, the position of the court. For, what- 
ever may be the number of court decisions 
which might be referred to as technical pre- 
cedents, the historical student, with the perver- 
sity characteristic of historical inquiry, desires 
to know whence came these court decisions or 

Scott, "Holmes vs. Walton, the New Jersey Precedent," Am. 
Hist. Rev., IV, 456; Chief Justice Walter Clark of North Caro- 
lina, address before Law Department of University of Pennsyl- 
vania, reprinted in Congressional Record, August 4, 191 1; W. M. 
Meigs, "Independence of Departments of Government," Am. 
Law Rev., XXIII, 594; W. M. Meigs, "Relation of Judiciary to 
the Constitution," Am. Law Rev., XIX, 175 (March-April, 1885); 
W. M. Meigs, " Some Recent Attacks on the American Doctrine of 
Judicial Power," Am. Law Rev., XL, 641; A. McF. Davis, 
"Case of Frost vs. Leighton, ,} Am. Hist. Rev., II, 229 (1897); 
E. S. Corwin, "Supreme Court and Unconstitutional Acts of 
Congress," Mich. Law Rev., June, 1906; E. S. Corwin, "The 
Establishment of Judicial Review," Mich. Law Rev., X (1910- 
191 1); Professor Trickett, "The Great Usurpation," Am. Law 
Rev., XL, 396, (May-June, 1906); Justice Gibson in Eakin vs. 
Raub, 12 Serg. and Rawle, 330. 



6 The Courts, the Constitution, and Parties 

the formulated constitutional principle. He 
wishes to know the real origins of an institution 
which, though not entirely unique, is never- 
theless fundamental and characteristic of the 
American system. 

Perhaps it is not necessary to emphasize the 
fact that in theory the Supreme Court of the 
United States is not a special tribunal set up to 
declare a law of Congress valid or invalid, or 
established to act as a sort of external censor 
upon political action. At least if the court 
occupies any such position now, such was not 
its original position in the theory of the Consti- 
tution or in the mind of the judges of the early 
days. In theory, any court may exercise the 
power of holding acts invalid; in doing so it 
assumes no special and peculiar role; for the 
duty of a court is to declare what the law is 
and to apply it, and, on the other hand, not to 
recognize and apply what is not the law; if a 
legislative act is beyond legislative competence 
it cannot be law. 

Although everyone may readily admit that 
this is a true theory, common popular opinion 
does not appear to comprehend the theory, for 
the statement is commonly made that the courts 
usurped the right to control legislation. It is 
sometimes said we now have a government by 



Power to Declare Law Unconstitutional 7 

courts. Indeed, in a large part of the discus- 
sions of this subject, even by trained scholars, 
there is a tendency to speak of judicial control 
over legislation and even to speak of the 
Supreme Court, as if the question at issue were 
whether that particular court was established 
to exercise the power of controlling Congress. 

Though, as I have said, my purpose is not to 
defend the courts in the exercise of this power, 
or to assert that they have assumed and usurped 
authority, it is necessary to make it plain that 
the courts at the beginning did not assume right 
of control. My question is, therefore, How 
did it happen that courts in America began, in 
the latter part of the eighteenth century, to 
refuse to recognize as law legislative acts which 
had the appearance of law and which were 
issued with all the formalities of law ? I shall 
begin with the case of Marbury vs. Madison, 
decided in 1803, and, after presenting briefly 
the position of the Supreme Court of the 
United States, go backward historically, at- 
tempting to discover the foundations or the 
preparation for this decision. 

Marbury vs. Madison (1803) 

In this case the Supreme Court of the United 
States for the first time declared a law of 



8 The Courts, the Constitution, and Parties 






Congress unconstitutional. 1 The facts of the 
case are familiar. Marbury, who had been 
appointed by President Adams to a position as 
justice of the peace in the District of Columbia, 
had not received his commission, though his 
appointment had been confirmed by the Senate 
and his commission had been signed and sealed. 
Marbury asked the Supreme Court to issue a 
mandamus to Madison, the Secretary of State, 
directing Madison to turn over the commission. 
The Judiciary Act of 1789 had authorized the 
Supreme Court "to issue writs of mandamus in 
cases warranted by the principles and usage of 
law, to any courts appointed, or persons holding 
office, under the authority of the United States." 
The court decided that it could not issue this 
writ of mandamus in an original proceeding 
and that this portion of the Act of 1789 was 
unconstitutional. In giving his opinion on this 
matter, Marshall, referring to the distinction 
between governments which are limited and 
those unlimited, said the distinction was abol- 
ished if the limits did not confine the persons 
on whom they were imposed, and if acts pro- 
hibited and acts allowed were of equal obliga- 
tion. "Between these alternatives, there is no 
middle ground. The Constitution is either a 

1 1 Cranch 137. 



Power to Declare Law Unconstitutional g 

superior paramount law, unchangeable by ordi- 
nary means, or it is on a level with ordinary 
legislative acts, and, like other acts, is alterable 
when the legislature shall please to alter it. 
.... Certainly, all those who have framed 
written constitutions contemplated them as 
forming the fundamental and paramount law 
of the nation, and consequently, the theory of 
every such government must be, that an act 
of the legislature, repugnant to the Constitu- 
tion, is void. 

"This theory is essentially attached to a 
written constitution, and is, consequently, to 
be considered by this court as one of the funda- 
mental principles of our society It is, 

emphatically, the province and duty of the 
Judicial Department to say what the law is. 
.... If two laws conflict with each other, the 
courts must decide on the operation of each." 

Marshall's argument on this phase of the 
case was brief and direct. To him the Consti- 
tution was law, and law meant that the courts 
were under obligation to accept it and apply it. 
But of course the mere fact that there was a 
written constitution in America did not neces- 
sarily imply as a logical fact the right of the 
court to apply that Constitution and ignore 
the interpretation of the Constitution by the 



io The Courts, the Constitution, and Parties 

legislative authority; that the Constitution was 
a law in the sense that it could be and must be 
maintained by the courts, even when Congress 
in exercising its legislative power had itself 
interpreted the Constitution, was the very 
point at issue. The thing then to be explained 
is why Marshall assumed that if the Constitu- 
tion was law, the courts must place their inter- 
pretation on it and not recognize the right of the 
legislative body to determine its own rights 
under it. The explanation of Marshall's posi- 
tion must be sought in the historical back- 
ground, not in mere logical disquisition on the 
Constitution alone; 1 certainly we cannot rest 
the judicial authority simply on the supposition 
that a written constitution can and must be 
interpreted in courts. 

IMMEDIATE ANTECEDENTS OF Marbury VS. 

Madison, 1 789-1803 

The Marbury case, as I have already said, 
was the first decided by the federal Supreme 
Court in which a congressional act was distinctly 
declared unconstitutional. There are, however, 
certain expressions of opinion and dicta by 

1 Of course other states of the world have written constitutions; 
but they have not as a rule been considered law in the sense that 
the courts can and must pass on them in opposition to the legis- 
lative judgment. 



Power to Declare Law Unconstitutional n 

federal judges, and at least some important 
decisions, which need to be taken into considera- 
tion as a preparation for Marshall's decision. 
In 1798 arose the case of Colder vs. Bull. 1 This 
was not a case involving the right of the court 
to declare a law of Congress unconstitutional; 
but it was of importance inasmuch as the 
Supreme Court discussed the validity of state 
legislation and, in course of the discussion, the 
judges freely expressed opinion concerning the 
general scope of judicial powers. Justice Chase 
declared that an act contrary to the first 
principles of justice would be void, even without 
direct constitutional prohibition. Justice Ire- 
dell thought that the mere principle of natural 
right or of fundamental justice 2 could not be 
considered distinct limitations on legislative 
competence, but he expressed the decided 
opinion that acts beyond legislative authority 
bestowed by the Constitution were void and 
that in clear cases the courts would so hold. 
It may be worthy of notice here that this case 

1 3 Dallas 386. 

2 At an earlier day he appears to have thought natural justice 
a limitation. "Without an express constitution the power of the 
legislature would undoubtedly have been absolute (as the Parlia- 
ment in Great Britain is held to be), and any act passed, not 
inconsistent with natural justice (for that curb is avowed by the 
judges even in England), would have been binding on the 
people." — McRee, Life of Iredell, II, 172. See post, p. 74, note. 



12 The Courts, the Constitution, and Parties 

may have been of some influence in the develop- 
ment of the principle we are looking for, because 
of the intimate logical and practical connection 
between the right of a federal court to declare a 
state law invalid, as a violation of the Constitu- 
tion or law of the United States, and the right 
to declare a law of Congress invalid. Could a 
federal court declare a state law unconstitu- 
tional and declare a congressional law of pre- 
cisely similar character constitutional, if both 
the state legislature and Congress were pro- 
hibited by the Constitution from passing such 
a law ? It happens in this case that one matter 
in question was whether a law was ex post 
facto; and both the United States and the state 
are forbidden by the Constitution of the United 
States to pass an ex post facto law. 

In 1796 arose the case of Hylton vs. the United 
States, 1 in which the subject under discussion 
was the validity of an act providing for a direct 
tax on carriages. The act was attacked as 
unconstitutional on the ground that the tax 
was direct and should have been apportioned 
among the states. The law was not held 
invalid, but the reason for bringing the suit was 
the assumption that the court had the power to 
declare the act invalid and the arguments before 

1 3 Dallas 171. 



Power to Declare Law Unconstitutional 13 

the court are based on that supposition. 1 The 
case of Vanhorne's Lessee vs. Dorrance, 1795 
(2 Dallas 304), was in the technical sense not 
strictly a precedent, but it probably prepared 
the way for the frank exercise of the power in 
Marbury vs. Madison, In the Vanhorne case 
a state statute was declared invalid because 
contrary to a treaty of the United States. In 
the course of the opinion Justice Paterson, with 
considerable fulness, outlined the American 
system and presented the basis for the exercise 
of judicial power. 2 

1 The case of Ware vs. Hylton (3 Dallas 199) might perhaps be 
mentioned because in it the court declared in favor of the force 
of a treaty over state law. This of course is not a direct precedent, 
but an instance, plainly provided for by the Constitution, of 
judicial authority in an important matter where state legislation 
was involved. 

2 Vanhome's Lessee vs. Dorrance (2 Dallas 304) : 

After commenting upon Coke and the statement of Blackstone 
on the omnipotence of Parliament, Justice Paterson says that 
"It is difficult to say, what the constitution of England is; 
because, not being reduced to written certainty and precision, it 
lies entirely at the mercy of the Parliament: it bends to every 
governmental exigency; it varies and is blown about by every 
breeze of legislative humor or political caprice. Some of the 
judges in England have had the boldness to assert, that an act of 
Parliament, made against natural equity, is void; but this opinion 
contravenes the general position, that the validity of an act of 
Parliament cannot be drawn into question by the judicial depart- 
ment: it cannot be disputed, and must be obeyed. The power of 
Parliament is absolute and transcendent; it is omnipotent in the 
scale of political existence. Besides, in England, there is no 



14 The Courts, the Constitution, and Parties 

Of more importance is the decision of the 
judges on the circuit in the "First Hayburn 
case," a distinct declaration, it would seem, 
of the unconstitutionality of a portion of 
the act requiring judges to act as pension 

written constitution, no fundamental law, nothing visible, nothing 
real, nothing certain, by which a statute can be tested. In 
America, the case is widely different: every state in the Union 
has its constitution reduced to written exactitude and precision. 

"What is a constitution? It is the form of government, 
delineated by the mighty hand of the people, in which certain 
first principles of fundamental laws are established. The consti- 
tution is certain and fixed; it contains the permanent will of the 
people, and is the supreme law of the land; it is paramount to the 
power of the legislature, and can be revoked or altered only by 
the authority that made it. The life-giving principle and the 
death-doing stroke must proceed from the same hand. What are 
legislatures? Creatures of the constitution: they owe their 
existence to the constitution: they derive their powers from the 
constitution; it is their commission; and therefore, all their acts 
must be conformable to it, or else they will be void. The consti- 
tution is the work or will of the people themselves, in their original, 
sovereign, and unlimited capacity. Law is the work or will of the 
legislature, in their derivative and subordinate capacity. The 
one is the work of the creator, and the other of the creature. 
The constitution fixes limits to the exercise of legislative authority, 
and prescribes the orbit within which it must move. In short, 
gentlemen, the constitution is the sun of the political system, 
around which all legislative, executive, and judicial bodies must 
revolve. Whatever may be the case in other countries, yet, in 
this, there can be no doubt, that every act of the legislature, 
repugnant to the constitution, is absolutely void. 

". . . . The constitution of a state is stable and permanent, 
not to be worked upon by the temper of the times, nor to rise and 
fall with the tide of events: notwithstanding the competition of 
opposing interests, and the violence of contending parties, it 
remains firm and immovable, as a mountain amidst the strife of 



Power to Declare Law Unconstitutional 15 

commissioners. 1 Of significance too is the 
determination of the judges not to act in a 
judicial capacity or as judges in the perfor- 
mance of their duties as commissioners, a 
determination made known by them in what 
is commonly called "the Hayburn case," and 
reported in a note in 2 Dallas 406. 

In the foregoing paragraphs I have mentioned 
the federal cases and the dicta of the judges 
which may have served as a preparation for the 
opinion in Marbury vs. Madison. 2 Justice 

storms, or a rock in the ocean amidst the raging of the waves. 
I take it to be a clear position: that if a legislative act oppugns a 
constitutional principle, the former must give way, and be rejected 
on the score of repugnance. I hold it to be a position equally- 
clear and sound, that, in such case, it will be the duty of the court 
to adhere to the constitution, and to declare the act null and void. 
The constitution is the basis of legislative authority; it lies at the 
foundation of all law, and is a rule and commission by which both 
legislators and judges are to proceed. It is an important principle, 
which, in the discussion of questions of the present kind, ought 
never to be lost sight of, that the judiciary in this country is not 
a subordinate, but co-ordinate, branch of the government." 

1 See M. Farrand, "The First Hayburn Case," Am. Hist. Rev. 
XIII, 281. Professor Farrand seems to demonstrate that Wilson, 
Blair, and Peters actually met the issue and declared the law 
unconstitutional. Reference might also be made to the case 
U.S. vs. Yale Todd (1794), referred to in a note in U.S. vs. 
Ferreira (13 Howard 52); the case grew out of the pension act 
referred to above but was not probably a distinct declaration that 
an act was unconstitutional. See Farrand, op. cit. 

2 In December, 1802, Marshall on the circuit in North Carolina 
(Ogden vs. Witherspoon, Federal Cases No. 10,461 and 3 N.C. 
404), sitting with a federal district judge pronounced an act 



1 6 The Courts, the Constitution, and Parties 

Marshall's opinion in the case is sometimes 
considered brief and summary as well as incon- 
clusive; we ought to bear in mind, however, 
that the judges in previous opinions had, with 
considerable clearness and explicitness, stated 
the principle on which the court acted. 

It is not necessary here to consider in detail 
various remarks made in Congress or in other 
places that would tend to show the acceptance 
of the notion that courts had the authority in 
question or, on the other hand, objections to 
the principle. It is worth while to notice in 
passing, however, the opinion of the states 
in their answer to the Virginia and Kentucky 
Resolutions where they speak of the Supreme 
Court of the United States as the final inter- 

of the state legislature void because the legislature had assumed 
judicial authority and violated the principle of separation of the 
powers. Marshall also believed the state act violated the federal 
Constitution by impairing the obligations of a contract. 

In the case of Minge vs. Gilmour (1798), Federal Cases No. 
9,631, Judge Iredell in the Circuit Court in North Carolina 
stated the doctrine clearly, but refused to declare the act in 
question — a state act — void; he expressed his belief, as he did 
in Colder vs. Bull, that an act ought not to be held void because 
contrary to natural justice, though some respectable authorities 
maintained the right of the courts to take that position. He 
declined to go farther than asserting that an act contrary to the 
Constitution is void. Reference should perhaps also be made to 
Judge Chase's words in U.S. vs. Callender, Federal Cases No. 
14,709. I believe the instances I have given above and in 
this note cover all the cases and opinions. 



Power to Declare Law Unconstitutional 17 

preter of the Constitution. And attention 
should probably here be called to the lectures 
of James Wilson, one of the most active, able, 
and influential men in the Philadelphia Con- 
vention and one of the judges iii the first 
Hayburn case. In these lectures delivered in 
1 791 and 1792 to the students of the University 
of Pennsylvania and a general audience, Wilson 
fully developed the doctrine that the court had 
a right to declare a law unconstitutional. 1 

The right of a federal court to declare an act 
of Congress unconstitutional was not directly 
and explicitly provided for in the Judiciary Act 
of 1789. That act is, however, properly con- 
sidered as a contemporaneous interpretation of 
the Constitution by men, some of whom were 
members of the Philadelphia Convention; and 
it may rightly be used as an indication of how 
some of the framers of the Constitution looked 
upon this matter, and also as a part of the back- 
ground of the Marbury decision and for the 
position announced in the dicta of the judges 
in the cases to which I have already called 

1 Wilson's lectures are the more significant from the fact that 
he coupled his assertion of this power of the court with a state- 
ment of the binding effect of divine law and thus, as we shall see 
more clearly in a later portion of this paper, helped to mark out 
for us the transition between the older and the later theories of 
fundamental unchanging law. 



1 8 The Courts, the Constitution, and Parties 

attention. Oliver Ellsworth, one of the leading 
men of the Convention, was the chief advocate 
of the act when it was before Congress, and to 
him is commonly attributed chief influence in 
forming the measure. That act provided for 
appeal, from the highest state court in which 
a decision of the suit could be made, to the 
Supreme Court of the United States, if the state 
court in passing on the validity of a congres- 
sional enactment declared such enactment 
invalid. This plainly indicates that the 
Supreme Court of the United States might 
agree with the state court and thus might 
co-operate with the state court in refusing to 
recognize the validity of congressional legisla- 
tion. It appears therefore as if the passage of 
this act must be considered as a logical prepara- 
tion for the independent right of the federal 
court to deny the validity of congressional 
enactments. 

The argument of Hamilton in the Federalist 
also deserves mention. His discussion of judi- 
cial power is extended and explicit. He takes 
issue with those who have fallen into "per- 
plexity respecting the rights of the courts to pro- 
nounce legislative acts void because contrary to 
the Constitution, from an imagination that 
the doctrine would imply a superiority of the 



Power to Declare Law Unconstitutional 19 

Judiciary to the Legislative power/ ' He also 
calls attention to the position already assumed 
by the state courts: "The benefits of the integ- 
rity and moderation of the Judiciary have 
already been felt in more States than one; and 
though they may have displeased those whose 
sinister expectations they may have disap- 
pointed, they must have commanded the esteem 
and applause of all the virtuous and disinter- 
ested.^ 1 

It is not my intention to present at length the 
statements made in the state conventions 
adopting the federal Constitution (1 787-1 788). 
In some of the conventions this power of the 
courts was referred to — by Marshall in Virginia, 
by Martin in Maryland, by Ellsworth in Con- 
necticut, by Wilson in Pennsylvania. These 
facts are not complete proof that the men of 
the enacting conventions intended consciously 
to bestow the power on the courts; so far as the 
discussion goes, however, it appears to support 
the contention that it was supposed that the 
courts would possess the power. 

THE STATE COURTS, 1787-1803 

The state judges in the period under con- 
sideration had at various times given opinions 

* Federalist, No. LXXVIII. 



20 The Courts, the Constitution, and Parties 

or expressed sentiments in favor of the general 
right of a court to declare a law contrary to the 
Constitution void. Of course I am speaking 
of state laws and of state constitutions. In 
Whittington vs. Polk, 1 a Maryland case, Chief 

1 Whittington vs. Polk, i Harris and Johnson (April, 1802), 
(Maryland) 236, 241 (the volume does not appear to have been 
published before 1821): 

"Chase, Ch. J. — In the discussion of this case the following 
points were raised and contended for by the counsel of the plaintiff. 
1 st, That an act of assembly repugnant to the Constitution is 
void. 2d, That the courts have a right to determine an act of 
assembly void, which is repugnant to the Constitution. .... 

"The two first points were conceded by the counsel for the 
defendant; indeed they have not been controverted in any of the 
cases which have been brought before this court. 

"Notwithstanding these concessions, the court deem it 
necessary to communicate the reasons and grounds of their 
opinion on those points. 

"The bill of rights and form of government compose the consti- 
tution of Maryland, and is a compact made by the people of 
Maryland among themselves, through the agency of a convention 
selected and appointed for that important purpose. 

"This compact is founded on the principle that the people 
being the source of power, all government of right originates 
from them. 

"In this compact the people have distributed the powers of 
government in such manner as they thought would best conduce 
to the promotion of the general happiness; and for the attain- 
ment of that all-important object have, among other provisions, 
judiciously deposited the legislative, judicial, and executive, in 
separate and distinct hands, subjecting the functionaries of these 
powers to such limitations and restrictions as they thought fit to 
prescribe. 

"The legislature, being the creature of the constitution, and 
acting within a circumscribed sphere, is not omnipotent, and can- 



Power to Declare Law Unconstitutional 21 

Justice Chase of that state said: "In the de- 
cision of the case the following points were 
raised and contended for by the counsel for 
the plaintiff: 1st, That an act of assembly 
repugnant to the Constitution is void; 2d, 
That the court has a right to determine an act 
of assembly void, which is repugnant to the 

not rightfully exercise any power, but that which is derived from 
that instrument. 

"The constitution having set certain limits or landmarks to 
the power of the legislature, whenever they exceed them they 
act without authority, and such acts are mere nullities, not being 
done in pursuance of power delegated to them: Hence the neces- 
sity of some power under the constitution to restrict the acts 
of the legislature within the limits denned by the constitution. 

"The power of determining finally on the validity of the acts 
of the legislature cannot reside with the legislature, because such 
power would defeat and render nugatory, all the limitations and 
restrictions on the authority of the legislature, contained in the 
bill of rights and form of government, and they would become 
judges of the validity of their own acts, which would establish 
a despotism, and subvert that great principle of the constitution, 
which declares that the powers of making, judging, and executing 
the law, shall be separate and distinct from each other. 

"This power cannot be exercised by the people at large, or in 
their collective capacity, because they cannot interfere according 
to their own compact, unless by elections, and in such manner as 
the constitution has prescribed, and because there is no other 
mode ascertained by which they can express their will. 

[Two paragraphs giving reason why ordinary political remedies 
and elections are not sufficient.] 

" .... It is the office and province of the court to decide all 
questions of law which are judicially brought before them, ac- 
cording to the established mode of proceeding, and to determine 
whether an act of the legislature, which assumes the appearance 



22 The Courts, the Constitution, and Parties 

Constitution [Two other points are 

given.] The two first points were conceded by 
the counsel for the defendant ; indeed they have 
not been controverted in any of the cases which 
have been brought before this court.' ' The 
judge goes on, however, to develop the basis 
of this power. In this case, the court did not 
declare a law invalid, but it announced its 
authority to do so. We should notice that the 

of a law, and is clothed with the garb of authority, is made pur- 
suant to the power vested by the constitution in the legislature; 
for if it is not the result or emanation of authority derived from 
the constitution, it is not law, and cannot influence the judg- 
ment of the court in the decision of the question before them. 

"The oath of a judge is 'that he will do equal right and justice 
according to the law of this state, in every case in which he shall act 
as judge.' 

"To do right and justice according to the law, the judge must 
determine what the law is, which necessarily involves in it the 
right of examining the constitution (which is the supreme or 
paramount law, and under which the legislature derive the only 
authority they are invested with, of making laws), and consider- 
ing whether the act passed is made pursuant to the constitution, 
and that trust and authority which is delegated thereby to the 
legislative body. 

"The three great powers or departments of government are 
independent of each other, and the legislature, as such, can claim 
no superiority or pre-eminence over the other two. The legislature 
are the trustees of the people, and, as such, can only move within 
those lines which the constitution has defined as the boundaries 
of their authority, and if they should incautiously, or unadvisedly 
transcend those limits, the constitution has placed the judiciary 
as the barrier or safeguard to resist the oppression, and redress 
the injuries which might accrue from such inadvertent, or unin- 
tentional infringements of the constitution." 



Power to Declare Law Unconstitutional 23 

court distinctly put forth the facts of the separa- 
tion of the powers of government. 

In 1796 in the matter of Lindsay and others 
against the Commissioner, 1 a South Carolina 
case, there was a difference of opinion. Judge 

1 Lindsay and others vs. the Commissioner, 1796; 2 Bay (S.C.) 
38, 61 (the book was printed in 1811): 

"He said, it was painful to him to be obliged to question the 
exercise of any legislative power, but he was sworn to support 
the constitution, and this was the most important of all the 
duties which were incumbent on the judges. On the faithful 
performance of this high duty would depend the integrity and 
duration of our government. If the legislature is permitted to 
exercise other rules than those ordained by the constitution, and 
if innovations are suffered to acquire the sanction of time and 
practice, the rights of the people will soon become dependent on 
legislative will, and the constitution have no more obligation than 
an obsolete law. But if this court does its duty, in giving to the 
constitution an overruling operation over every act of the legisla- 
ture which is inconsistent with it, the people will then have an 
independent security for their rights, which may render them 
perpetual. In exercising this high authority, the judges claim 
no judicial supremacy; they are only the administrators of the 
public will. If an act of the legislature is held void, it is not be- 
cause the judges have any control over the legislative power, but 
because the act is forbidden by the constitution, and because the 
will of the people, which is therein declared, is paramount to that 
of their representatives, expressed in any law. As the act under 
consideration appeared to him to be repugnant to this high will, 
he was bound to say, that it ought not to have any operation, and 
that the prohibition should be granted." 

This was the opinion of Judge Waties, who appears to have been 
in accord with Judge Burke. 

The judges were equally divided in the case and the applicants 
took nothing by their motion. There was no doubt that the 
validity of the law came distinctly before the court and the 
judges were divided on the subject. 



24 The Courts, the Constitution, and Parties 

Waties, supported by Judge Burke, asserted 
this right and said "if an act of the legislature 
is held void, it is not because the judges have 
any control over the legislative power, but 
because the act is forbidden by the constitution, 
and because the will of the people, which is 
therein declared, is paramount to that of their 
representatives expressed in any law." In 
1794 the judges of North Carolina appear to 
have been in conflict, although the basis on 
which the judges acted in holding the law not 
void is not clear. Judge Williams, while 
sitting alone, declared the act in question un- 
constitutional, but two other judges a few days 
later proceeded on the principle that the act 
of the legislature was good. 1 



1 Haywood's Reports (N.C.), I, 28, 29, 40. State vs. 



"At the last session of the General Assembly, it was enacted 
that judgments might be obtained by the Attorney-General 
against receivers of public money, by motion; and that their 
delinquencies should be sufficient notice to them that they were 
to be proceeded against: and upon this act the Attorney-General 
now moved for judgment against several, and produced the act 
to shew how he was authorized so to do. 

"But Judge Williams stopped him, saying he could not permit 
judgments to be taken in that manner. That he conceived the 
act to be unconstitutional, it was to condemn a man unheard. 
The 1 2th article of the Bill of Rights says, 'No freeman ought 
to be taken, imprisoned or disseised of his freehold, liberties or 
property, &c. but by the law of the land'; and these words mean, 
according to the course of the common law; which always required 
the party to be cited, and to have a day in court upon which he 
might appear and defend himself. The 14th section declares, 



Power to Declare Law Unconstitutional 25 

The court of South Carolina in the case of 
Bowman and others (1792), devisees of Cattell vs. 
Middleton, declared a law of 1712 " ipso facto 

that the ancient mode of trial by jury, is one of the best securities 
of the rights of the people, and ought to remain sacred and inviol- 
able. The ancient mode of trial by jury was, that after the de- 
fendant was cited, and had pleaded, and the other party had 
denied his plea, or some part of it, then the point in controversy 
was submitted to the decision of a jury; but here, though a jury 
may be sworn, what will it be upon ? It will be upon a default 
taken against the party who does not appear and plead, because 
he has no knowledge that any proceedings are intended to be 
had against him; and so in truth it is not a trial by jury according 
to the ancient mode — the defendant has no opportunity of making 
any defensive allegations which may be submitted to the decision 
of a jury; but the jury here are merely to pronounce what is the 
sum to be recovered, and in this they are to be governed by the 
report of the comptroller, which is made evidence against the 
defendant by another act of Assembly; so that in reality the jury 
have nothing to determine on — it is mere form for the sake of 
which they are to be impanneled — such a trial is a mere farce. I 
think the act unconstitutional, and I cannot, as at present advised, 
give my assent to its being carried into effect — the Judges of the 
land are a branch of the government, and are to administer the 
constitutional laws, not such as are repugnant to the constitution; 
it is their duty to resist an unconstitutional act. In fact, such an 
act made by the General Assembly, who are deputed only to make 
laws in conformity to the constitution, and within the limits it 
prescribes, is not any law at all. Whenever the Assembly exceeds 
the limits of the constitution, they act without authority, and 
then their acts are no more binding than the acts of any other 
assembled body 

"Judge Williams still adhered to his opinion of yesterday, 
giving nearly the same reasons he then gave. 

"At Halifax court a few days after, the Attorney-General again 
moved the court, consisting of Judge Ashe and Judge Macay, and 
stated to them the arguments which had been used at Hills- 
borough: after hearing him, the court took time to advise for a 



26 The Courts ; the Constitution, and Parties 

void" because it was against common right as 
well as against Magna Charta. 1 In 1793 in the 
case of Kamper vs. Hawkins 2 the Virginia court 

few days; when the matter being moved again, Judge Ashe gave 
the opinion of the court, saying he and Judge Ma cay had conferred 
together — that for himself he had had very considerable doubts, 
but that Judge Macay was very clear in his opinion that the judg- 
ments might be taken, and had given such strong reasons, that 
his (Judge Ashe's) objections were vanquished, and therefore that 
the Attorney- General might proceed — but that yet he did not 
very well like it. — So the judgments were taken." 

1 1 Bay (S.C) 252, 254 (the volume appears to have been 
published in 1809): 

"The question was of the validity of an act passed in 171 2 
transferring the freehold from the heir at law, one Nicholls, and 
also from the eldest son and heir of John Cattell, deceased, 
investing it in the second son, William Cattell, without a trial by 
jury; considered null and void. 

"The Court (present, Grimke and Bay, Justices), who, after a 
full consideration on the subject, were clearly of opinion, that the 
plaintiffs could claim no title under the act in question, as it was 
against common right, as well as against magna charta, to take 
away the freehold of one man and vest it in another, and that, too, 
to the prejudice of third persons, without any compensation, or 
even a trial by the jury of the country, to determine the right in 
question. That the act was, therefore, ipso facto void. That 
no length of time could give it validity, being originally founded 
on erroneous principles. That the parties, however, might, if 
they chose, rely upon a possessory right, if they could establish 
it." 

2 1 Virginia Cases 20. In Stidger vs. Rogers (1801), 2 Ken- 
tucky 52, an act was declared unconstitutional. In Slate vs. 
Parkhurst (1802), 4 Halstead, N.J. 427, the court laid down the 
doctrine distinctly, stated the facts and the decision of Holmes 
vs. Walton (see post, p. 41), and mentioned another case, Taylor 
vs. Reading, which I have not been able to find in the New Jersey 
reports, in which a law was held void. Austin vs. Trustees 



Power to Declare Law Unconstitutional 27 

decided that an act contrary to the constitution 
could not be executed, and after long and 
thorough discussion of the principles refused 
to execute the act in question. Two of the 
judges referred to Vattel, one of them quoting 
at length a passage from VattePs Law of Nature 
and of Nations, to which reference is made in 
later pages of this paper. 

The Virginia Court of Appeals in 1792, in the 
case of Turner vs. Turner's Executrix, 1 - did not 
declare a law unconstitutional; but in giving 
prospective rather than retrospective applica- 
tion to the law, the court said: "It is the 
business of legislators to make the laws; and 
of the judges to expound them. Having made 
the law, the legislature have no authority 
afterward to explain its operation upon things 
already done under it. They may amend as to 
future cases, but they cannot prescribe a 
rule of construction, as to the past." The 
reason given was declared to be the same as 

(1793), 1 Yeates, Penn. 260, is not a distinct precedent, but the 
judges evidently considered that the court had the power. In 
Respublica vs. Duquet (1799), 2 Yeates 493, the court says a law 
will not be pronounced unconstitutional save in a clear case. 
The principle is laid down in Commonwealth vs. Franklin, a 
Pennsylvania case reported in Am. Law Jour., II, new series, 287. 
1 4 Call 234, 237. At the very least an interesting example 
of the way in which the courts will use fundamental law to control 
and mould legislative enactment. 



28 The Courts, the Constitution, and Parties 



that which was operated against ex post facto 
laws. 

The "Case of the Judges" 1 in Virginia, in 
1 788-1 789, was doubtless well known and was 
of importance because the court explained at 
considerable length the relation of the judicial 
and legislative branches of the government, the 
independence of the judiciary, and the basis 
of its power to refuse recognition of an act 
transcending the constitution. The issues 
involved were complicated and need not be 
here given in detail. The court denied the 
right of the legislature, by an act establishing 
district courts, to add to the duties and burdens 
of the judges of the High Court of Appeals, 
declaring that the additional onerous burdens 
without additional compensation constituted 
an attack upon the independence of the judi- 
ciary. The judges refused to "do anything 
officially in execution of an act which appeared 
to be contrary to the spirit of the constitution." 
In a remonstrance to the General Assembly, 
they say, "To obviate a possible objection, that 
the court, while they are maintaining the inde- 
pendence of the judiciary, are countenancing 
encroachments of that branch upon the depart- 
ment of others, and assuming a right to control 

« 4 Call 135. 




Power to Declare Law Unconstitutional 29 

the legislature, it may be observed that when 
they decide between an act of the people, and 
an act of the legislature, they are within the 
line of their duty, declaring what the law is, 
and not making a new law." The legislature 
altered the law but on the same day passed 
another, reconstituting the Court of Appeals. 
To this act the judges again objected, con- 
tending that an act of the Assembly could not 
deprive judges of their offices; but because of 
their general sympathy with the purposes of the 
act, they resigned and the new system went 
into effect. 

A consideration of all the cases I have 
mentioned, and all the dicta and opinions of the 
judges, discloses that the belief was evidently 
held by the judges, in the early years after the 
Constitution of the United States was adopted, 
that courts in general and because of the nature 
of our constitutions possessed this power and 
were under obligations to exercise it. Courts 
from one end of the land to the other assumed 
this power, and acted on the same principle. 
The judges were, it seems, not acting strictly on 
precedent. Indeed, the striking fact is that 
they commonly did not refer to precedents; but 
they thought alike and along similar lines. 
Cases were at that time not immediately 



30 The Courts, the Constitution, and Parties 

printed and put within reach of judges and 
lawyers. A number of the books of reports 
referred to in this paper were not printed till 
long after the decision. It is a curious fact that 
in a case decided in the U.S. District Court in 
Massachusetts in 1808, although the court 
brings together such opinions and decisions as it 
can, even Marbury vs. Madison(i) was unknown 
to the judge until after his decision was an- 
nounced; it was referred to in an added foot- 
note to the case. 1 

THE CONSTITUTION AND THE CONSTITUTIONAL 
CONVENTION OF 1 787 

The question may now be asked, Why this 
search for precedents and for expressions of 
opinion on this subject in the years following 
the federal Convention ? Why not turn to the 
Constitution and to the Convention at once and 
discover there the power claimed by the court ? 
The answer is of course that the Constitution is 
not explicit and that the Convention's debates 
do not, beyond all possibility of cavil or doubt, 
solve the question concerning the power of the 
court. Let us first examine the Constitution. 

Mr. Brinton Coxe, in his able book on the 
Judicial Power and Unconstitutional Legislation, 

1 See Am. Law Jour, (old series), II (1809), 255, 264. 



Power to Declare Law Unconstitutional 31 

maintains that the Constitution provides for 
such a power in the courts because it declares 
that the Constitution shall be the supreme law 
of the land and because, in giving the extent of 
judicial authority, it says that such authority 
shall extend to controversies arising under the 
Constitution. Though the Constitution by 
these phrases necessarily implies the interpreta- 
tion of the Constitution, to contend that they 
were beyond question consciously intended to 
give the courts power to pass on the validity 
of congressional acts is going too far; for 
judicial interpretation of the Constitution 
might well be necessitated without the necessity 
of considering the validity of congressional en- 
actments, and even where no congressional law 
was under consideration. That portion of the 
Constitution therefore which describes the ex- 
tent of judicial authority may justly be omitted 
from special discussion. 

The clause declaring that the Constitution, 
laws, and treaties are the supreme law of the 
land certainly, however, deserves attention. 
The Constitution is made law, and laws are to 
be enforced in courts. The very fact that the 
Constitution is a law, and is so solemnly de- 
clared, is of much moment in any consideration 
of this matter. But this particular clause goes 



2,2 The Courts, the Constitution, and Parties 

on to say that "the judges in every state shall be 
bound thereby, anything in the Constitution or 
laws of the respective states to the contrary 
notwithstanding. " This means that the state 
judges shall obey and apply the Constitution 
of the United States as law, even as against 
their state constitutions and statutes. But 
does it mean that the courts shall also refuse 
to recognize as valid a federal law which they 
consider beyond the power of Congress? It 
must be said that the framers of the Constitu- 
tion, when they framed this particular clause, 
had, probably, uppermost in their minds the 
great danger of the time, the tendency of the 
states to act in disregard of their duties and 
obligations under the articles of union. It 
appears, however, as I have already said, of 
immense moment that the Constitution should 
be called law, and if we take into consideration 
the probable intention, made more evident by 
the Judiciary Act of 1789, to give the federal 
Supreme Court the right to decide whether the 
state courts had recognized the binding effect 
of the Constitution, we strengthen the reason- 
able presumption, that, when the Constitution 
was declared law, the lawyers and logicians of 
the Convention, men like Wilson and Ellsworth, 
would inevitably suppose that the Constitution 



■ 



Power to Declare Law Unconstitutional 33 

was in general to be enforced in the courts, 
even when an act of Congress was opposed to it. 
It appears strange that those who assert that 
the courts of the United States usurped power 
do not recognize, in their view of the back- 
ground or in their assertions that there was no 
constitutional provision authorizing such judi- 
cial action, this fact of supreme importance, 
^t least by plain constitutional provision state 
courts are called upon to declare state enact- 
ments violating the Constitution, laws, and 
treaties to be invalid. And thus is clearly 
recognized the use of courts for such purpose./ 
I am not now arguing that this clause in the 
Constitution is a direct mandate to federal 
courts to declare a law of Congress unconstitu- 
tional. But I anfarguing that the mandate to 
the state courts clearly establishes a notion of 
the Constitution as law enforceable in the 
courts; and the inclusion of this provision in the 
Constitution certainly serves as a psychologi- 
cal background;^ it shows that the framers of 
the Constitution had clearly reached a state of 
mind in which they were ready to declare that 
state courts should act independently of legis- 
lative authority in the state and apply superior 
law. ^he very presence of such a provision 
in the Constitution proves that the framers had 



34 The Courts, the Constitution, and Parties 

at the very least passed some distance from the 
position, which we are sometimes assured is the 
only reasonable one, namely the obligation of 
courts to recognize legislative acts as valid. 
In one most important particular the framers 
called upon courts to act, and recognized their 
independence and peculiar power; and it is this 
conception, this general appreciation of the 
power and place of courts, which needs special 
explanation. ^Nothing in fact is more momen- 
tous than the conception of the Constitution as 
law — a constitution, which outlined and de- 
termined relationships between governments 
and fixed the principles of federal order in a 
composite state, was to be applied like ordinary 
law in a court. This is of supreme importance, 
even if the framers had consciously in mind only 
the function of state courts in passing upon the 
validity of state action under the Constitution 
of the United States. / All other provisions of 
the Constitution bearing on courts and judicial 
authority and all omissions of distinct state- 
ment are unimportant as compared with the 
fact/that the fundamental law which estab- 
lished federalism was for judicial cognizance 
and enforcement./ 

Anyone desiring to understand the impor- 
tance of the courts and the place they have come 



Power to Declare Law Unconstitutional 35 

to occupy in our constitutional system, as men 
viewed the situation of those days, would have 
to understand the tendencies which prompted 
men to turn to courts and the judicial enforce- 
ment of law as of basic significance in any 
scheme of constitutional order. 1 The mainte- 
nance of the treaties of the Confederation, as 
over against state enactments violating the 
treaties, had been brought into discussion, and 
the duty of the courts to abide by the legisla- 
tion of Congress had been considered in the 
days before the Convention of 1787 met. 

Just how this principle developed it is very 
difficult to say. Possibly no distinct presenta- 
tion of it appeared earlier than the act of Con- 
gress of the Confederation, April 13, 1787, 
declaring that states cannot rightly pass any 
act or acts interpreting, limiting, or impeding 
the operation of a national treaty, and that 
when treaties are "constitutionally made" they 

1 1 am dwelling upon this aspect of the case because the con- 
stant inquiry is, Why should courts dare to exercise such an 
important function as to declare legislative acts invalid ? Such 
presumption on the part of the courts is, I maintain, more easily 
understood if we realize that legislators and constitution-makers 
had already turned to state courts as great instrumentalities for 
the defense and maintenance of constitutional order. I have in 
mind, when I speak of constitutional order, the order in the 
federal or composite system; the courts were called upon to 
disregard state legislative acts, in order that national authority 
or federal order might be preserved. 



36 The Courts, the Constitution, and Parties 






become a "part of the law of the land." The 
act also called on the legislatures to repeal 
the acts in general terms and to authorize the 
courts to decide cases in accordance with the 
treaty, rather than in accordance with a state 
law at variance with a treaty. Probably back 
of this resolution was, in some degree, the force 
of experience in the old colonial system of Great 
Britain, of which something will be said later 
on in this paper. However this may be, the 
contention or the belief that state acts, contra- 
vening treaties or acts of Congress under the 
Confederation, might be or ought to be con- 
sidered void, must be connected with the 
development of the principle that state courts 
should hold them void, 1 and this prepared the 
way for the announcement in the Constitution 
that constitutional laws and treaties are the 
supreme law of the land., 

It is unnecessary here to enter upon a full 
consideration of the discussion in the federal 
Convention of 1787. If one confines his atten- 
tion to such records of debate as we have, he 

1 See Richard Henry Lee to George Mason in Rowland, Life, 
Correspondence and Speeches of George Mason, II, 107; Alexander 
Hamilton, Works (Lodge ed.), I, 288, the third defect — the want 
of a federal judiciary; Article 19 in Report of the Grand Com- 
mittee of Congress proposing amendments to the Articles, in 
Bancroft, History of the Constitution, II, 374. 



Power to Declare Law Unconstitutional 37 

may be left in uncertainty as to whether or not 
the framers intended to bestow this power upon 
the courts. They undoubtedly considered the 
subject, chiefly in connection with the proposi- 
tion to join the judges with the President in the 
revision of the laws. In a recent article by 
Professor Beard there is an attempt in a clever 
manner, by various tests, to show at least strong 
presumption that the framers must have sup- 
posed the courts would exercise this power. 
His investigations are of great force, if they are 
not absolutely conclusive; I shall not attempt 
here to investigate the discussions of the Con- 
vention but only make reference to this article. 1 

1 "The Supreme Court — Usurper or Grantee," Political Science 
Quarterly, March, 19 12, p. 1. Professor Beard's method is to 
consider not alone what was said in the Convention but what was 
said by men, especially the leaders, both in the Convention and at 
other times. There are a few facts which he does not give (and 
he does not pretend to have made his investigation absolutely 
exhaustive) which used, in the same manner, strengthen the 
contention of his article. For example, Brearly, a member of the 
Convention from New Jersey, had actually, as chief justice of the 
state, pronounced an act unconstitutional {Holmes vs. Walton, see 
below). Paterson, another member, was attorney-general of 
New Jersey when Brearly gave his decision; and Justice Paterson 
clearly gave his opinion in Vanhorne's Lessee vs. Dorrance, men- 
tioned above. Livingston, also a New Jersey member of the 
Philadelphia Convention, was governor when the case was 
decided. Gouverneur Morris, in an address to the Pennsylvania 
legislature in 1785, referred to the New Jersey case and said, 
"Such power in the judges is dangerous; but unless it somewhere 
exists, the time employed in framing a bill of rights and form 



38 The Courts, the Constitution, and Parties 

In making up our minds as to the purpose of 
the framers of the Constitution, it is necessary 
to remember that the power of a court to declare 
a law unconstitutional, as I have already said, 
does not imply the superiority of the court to 
the legislative branch of government. And we 
need not suppose that the men that made the 
Constitution necessarily believed that a refusal 
of a court to recognize a law as constitutional 
meant that the court was set aside as a kind of 
external tribunal, as a body of censors. In- 
deed, judging by the various opinions, to some 
of which I have already referred, it is plain that 

of government was merely thrown away." Luther Martin in 
Wittington vs. Polk acknowledged that a court could declare an 
act void; this was some years after the Convention. Brearly 
again declared a law void in 1797, according to the court in 
4 Halstead 444, cited above. 

It appears to be supposed sometimes that the framers of the 
Constitution were unable to agree concerning the problem of 
judicial authority to declare laws unconstitutional; and it is 
sometimes intimated that they were uncertain of popular approval 
or in fear of popular disapproval if they bestowed such power 
on the courts; in consequence they avoided distinct statements. 
But there could not well have been much fear of such disapproval 
by the people if the power were given to declare acts of the 
national legislature void; the Convention plainly gave the power 
to state courts to declare invalid not only acts of state legislatures 
but the state constitutions themselves. The really difficult problem 
before the Convention was whether or not to establish an inferior 
federal judiciary. On this subject the Convention took refuge in 
compromise, or at least in inexplicit statement. On this matter 
they had reason to feel real concern. 



Power to Declare Law Unconstitutional 39 

the courts approached this subject from the 
point of view of their separate independence, 
rather than because of any duty or responsi- 
bility for checking legislative action. 

It must be said, however, that the framers of 
the Constitution, as well as many others of the 
time, were interested in providing a system of 
checks and balances whereby one department 
of the government would restrain the others. 
The men at Philadelphia were desirous of estab- 
lishing a strong government capable of protect- 
ing property and capable also of protecting 
liberty and maintaining order. But, though 
desiring peace and order and government, like 
other men of the Revolutionary epoch the 
framers were afraid of government and were 
quite as desirous of working out a system oiX 
restraints as they were of giving efficiency to 
government. They wished to protect indi- 
vidual right and property. Through these 
years, therefore, the courts were sometimes 
considered as constituting a valuable check on 
legislative or executive action. We find this 
power of the courts occasionally spoken of as a 
method of regulating or controlling the conduct 
of the other branches of government. From 
what has been already said, however, and from 
the evidence given later in this paper, we see 



40 The Courts, the Constitution, and Parties 

that the courts did not obtain and exercise this 
power because men felt that an extraneous 
superior authority should be established, but 
because of the separate and independent posi- 
tion in which the courts were established and 
because of their particular function to declare 
and apply the law. 

^PRINCIPLES AND PRECEDENTS, 1776-87/ 

So far in our examination we have traversed 
some sixteen years, tracing historical facts back- 
ward from 1803 to the Constitutional Conven- 
tion of 1787. But it should be pointed out 
that, even if we had discovered in the Constitu- 
tional Convention a distinct intention to bestow 
this power on the courts, we should not have 
satisfied our curiosity as to the source of this 
principle. The men of 1787 certainly did not 
create the principle out of their imaginations. 
It is, therefore, once again necessary to work 
our way backward to discover the emergence of 
principles before the meeting of the Convention. 

Students who have examined the subject 
under discussion, the origin of judicial power in 
this country, have commonly referred to various 
cases in the state courts, in the period between 
the outbreak of the Revolution and the meeting 
of the federal Convention; to this matter we 



Power to Declare Law Unconstitutional 41 

may now turm our attention. I shall not 
examine these c&ses, however, strictly as pre- 
cedents in any technical sense; but consider 
them as forming an historical background; and 
I shall have in mind also the method of ap- 
proach followed by the judges, and the nature 
or the course of their reasoning. There were 
in this period a few cases in which state legis- 
lative acts were declared unconstitutional by 
state courts or in which the principle of inde- 
pendent interpretation was announced by the 
judges in the state courts. These cases and 
opinions are of considerable importance as more 
than mere legal precedents in any narrow or 
technical sense. They disclose the situation 
and present the state of mind; moreover, it 
should be noticed that this position was not 
justified by any declaration in the state consti- 
tutions that the constitution was law or, in 
some cases, by the distinct announcement in the 
state constitutions that the courts were an 
independent and separate branch of the govern- 
ment. The first case, a most important one, 
was that of Holmes vs. Walton, a New Jersey 
case decided in 1780, in which a law of the state 
of New Jersey was declared unconstitutional. 1 

1 See "Holmes vs. Walton, the New Jersey Precedent," by 
Austin Scott in Am. Hist. Rev., IV, 456. It is worthy of note 



42 The Courts, the Constitution, and Parties 

The second case is the case of Caton vs. 
Commonwealth of Virginia, decided in 1782. 1 
Judge Wythe in this case said: "I have heard 
of an English chancellor who said, and it was 
nobly said, that it was his duty to protect the 
rights of the subject against the encroachments 
of the crown; and that he would do it, at every 
hazard." After speaking of his duty to protect 
one branch of the legislature, Judge Wythe went 
on to say, "Nay more, if the whole legislature, 

that Brearly, the chief justice who rendered the decision, Pater- 
son, the attorney-general, and Livingston, the governor at the 
time the decision was rendered, were delegates from New Jersey 
to the federal Convention. They were interested in the forma- 
tion of the New Jersey or small state plan, and it was through this 
plan that the clause declaring the Constitution, laws, and treaties 
of the United States the law of the land, worked its way into the 
Constitution of the United States. It will not do to stress the con- 
nection between Holmes vs. Walton and this section of the Consti- 
tution; it is possible, but we cannot say more, that the case 
was of influence on the minds of men like Paterson when the 
small state men in their plan provided that laws and treaties 
should be "the supreme law of the respective states" and that 
the judges of the states should be bound thereby. Paterson was 
on the supreme bench when Marbury vs. Madison was decided. 

1 4 Call (Virginia) 5, 8. The question involved was whether 
or not a pardon passed by the House of Delegates constituted a 
constitutional pardon. The court decided that the action of the 
House without the co-operation of the other branch of the 
General Assembly was not conclusive. The case was not so 
simple as it might appear because there was at least some ground 
for asserting that the power belonged to the House of Delegates. 
The whole question of the right to declare a law unconstitutional 
arose in the discussion of the case. There was some question of 
the general validity of the treason law of 1776. 



Power to Declare Law Unconstitutional 43 

an event to be deprecated, should attempt to 
overlap the bounds, prescribed to them by the 
people, I, in administering the public justice 
of the country, will meet the united powers, at 
my seat in this tribunal; and, pointing to the 
constitution, will say, to them, here is the limit 
of your authority; and, hither, shall you go, 
but no further." 1 

The case of Rutgers vs. Waddington is often 
cited as an example or precedent. It arose in 
the Mayor's Court of the City of New York in 
1784. 2 The case, however, did not directly 
declare a law unconstitutional, though the court 
was accused of having taken that position. 
What the court did do was to interpret the act 
and to pass upon the purpose of the legislature 
in passing it in such a way as to make it inap- 

1 The connection between the right to protect against executive 
action and the right to protect against legislative action is note- 
worthy. Judge Blair was a member of the court when this case 
was decided. He was a member of the Philadelphia Convention 
and was for a short time a judge in the Supreme Court of the 
United States. The report says (4 Call 20), "Chancellor Blair 
and the rest of the judges, were of the opinion that the court had 
power to declare any resolution or act of the legislature or either 
branch of it, to be unconstitutional and void." Judge Pendleton 
was not so sure. Pendleton, however, was a member of the court 
when the judges took the position in the Case of the Judges 
previously mentioned. 

2 See Thayer, Leading Cases, I, 63. Hamilton, one of the 
members of the Philadelphia Convention, was one of the attorneys 
in the case. 



44 The Courts, the Constitution, and Parties 

plicable to the facts at issue. The court did 
not distinctly set itself up as paramount to the 
legislative body or as controlled by a superior 
law. The court said that judges are not at 
liberty to reject a law where the intention is 
manifest. "But when a law is expressed in 
general words, and some collateral matter, 
which happens to arise from those general 
words, is unreasonable, there the judges are in 
decency to conclude, that the consequences were 
not foreseen by the legislature; and therefore 
they are at liberty to expound the statute by 
equity, and only quoad hoc to disregard it." 1 
The position of the judges in this matter is of 
considerable interest in light of what will be 
said later on in this paper concerning the way 
in which the courts in England at an earlier 
day, as well as the courts in this country, felt 
free to interpret legislative acts in such a way 
as to make them ineffective while they were 
pretending not to disregard the statute in toto. 
In Rhode Island in 1786 arose the well- 
known case of Trevett vs. Weeden. 2 It is note- 

1 This statement is practically a quotation from Blackstone, 
Introd., § 3, par. 20, No. 91. 

2 The best source for understanding this case is a pamphlet 
by James M. Varnum, the attorney for the defense in the case, 
printed in Providence in 1787. It appears to be fully reprinted 
in P. W. Chandler, Am. Criminal Trials (1844), II, 269. This 



Power to Declare Law Unconstitutional 45 

worthy that Rhode Island continued under her 
old charter. It is true that this may be con- 
sidered a written constitution, but it was not a 
written constitution emanating in full from the 
people like constitutions of the other states, with 
the exception of that of Connecticut. More- 
over there was nothing in the charter or consti- 
tution of Rhode Island explicitly providing 
against the sort of legislative measure which the 
court was considering in this case. Without 
attempting to consider the various aspects of 
the discussion or the basis of the decision at 
length, I wish to call especial attention to the 
statement in the argument of James M. 
Varnum, the attorney f6r Weeden. He declared 
the right to jury trial was a fundamental con- 
stitutional right, always claimed and ratified 
as such and always held most dear and sacred; 
that the legislature derived all its powers from 
the constitution and had no power of making 
laws but in subordination of the constitution, 
and therefore could not violate the constitution 
by depriving citizens of jury trial; that the 

volume at least gives Varnum's speech. A material statement is 
given in Thayer, Cases on Constitutional Law, I, 73; and the 
argument is in Coxe, Judicial Power and Unconstitutional Legisla- 
tion, 236. Coxe calls attention to the use of Vattel in Bayard 
vs. Singleton, but does not seem to know that the Massachusetts 
legislators had done much to popularize the doctrine. See 
post, p. 70. 



46 The Courts, the Constitution, and Parties 

act was therefore unconstitutional and so void; 
that the court had power to judge and deter- 
mine what acts of the General Assembly were 
agreeable to the constitution; that the court 
was under obligations to execute the laws of the 
land and therefore could not, would not, con- 
sider this act as a law of the land. He referred 
to Locke and Vattel and particularly to that 
portion of Vattel in which the question is dis- 
cussed as to whether legislatures have the right 
to legislate in disregard of the fundamental 
law; he quoted the argument in which Vattel 
concludes that the legislature cannot change 
the constitution without destroying the founda- 
tions of its own authority. On the ground that 
the act was unconstitutional the court refused 
to take cognizance of the information. 

Another valuable precedent is that of Bayard 
and Wife vs. Singleton, a North Carolina case 
decided in 178 7. 1 In this case the court clearly 
declared a law unconstitutional, and the fol- 
lowing statement from the court is of special 
significance: "But that it was clear, that no 
Act they could pass, could by any means repeal 
or alter the constitution, because, if they could 

1 1 Martin (N.C.) 42. The exact title is Den on the dent, of 
Bayard and wife vs. Singleton. It is plain that the court had in 
mind the statement of Vattel, used also by Varnum in the argu- 
ment in Trevett vs. Weeden. Judge Ashe called attention to the 
separation of the powers. 






Power to Declare Law Unconstitutional 47 

do this, they would at the same instant of 
time, destroy their own existence as a Legisla- 
ture, and dissolve the government thereby 
established. Consequently the constitution 
(which the judicial power was bound to take 
notice of as much as of any other law whatever), 
standing in full force as the fundamental law 
of the land, notwithstanding the act on which 
the present motion was grounded, the same act 
must of course, in that instance, stand as abro- 
gated and without any effect." 

It is sometimes said that there was a Massa- 
chusetts case not far from this time. J. B. 
Cutting wrote to Jefferson commenting upon 
the recent proceeding of the Virginia Court 
of Appeals, evidently referring to the Case of 
the Judges which I have mentioned above. 
He also said that an act of the legislature was 
declared unconstitutional by the Supreme Court 
of Massachusetts, and at the next session of 
the legislature the law was repealed, although 
he doubted the necessity of such a procedure. 1 

According to Judge Tucker, a case arose in 

1 Bancroft, History of the Constitution, II, 472, 473; A. C. 
Goodell, Jr., "An Early Constitutional Case in Massachusetts," 
Harvard Law Review, VII. Mr. Goodell is of the opinion that 
this case was one in which the court of the state refused to hold 
valid an act passed on the subject of British debts by the Massa- 
chusetts legislature, an act contrary to the treaty of peace and 
encroaching upon the power of Congress under the Articles of 
Confederation, i.e., the Constitution. 



48 The Courts, the Constitution, and Parties 

Virginia in 1778 in which the courts refused to 
abide by an act of the legislature. This is 
called the case of Josiah Philips. Philips was 
taken and tried according to the ordinary 
course of law, in spite of the fact that an act of 
attainder had been passed by the legislature. 
Tucker says the court refused to pass the 
sentence pursuant to the direction of the act. 
"This is decisive proof of the importance of the 
separation of the powers of government, and 
of the independence of the judiciary." 1 The 
evidence is by no means conclusive that the 
court declined to recognize the constitutionality 
of the bill of attainder; it appears probable 
that the judges intimated their objections to 
Mr. Randolph, the attorney-general, and that 
in consequence Philips was regularly tried and 
convicted. It is not at all impossible, however, 
that this case may have been later looked upon, 
despite various distortions of the facts, as a 
case in which the court asserted its independent 
right to interpret the constitution. 2 

These precedents, we are told, are not very 
valuable precedents for courts to act upon. I 
am citing them, not so much as precedents in 

1 Tucker's Blackstone, I, Appendix, 293. 

2 The whole case is illuminatingly discussed by W. P. Trent, 
"The Case of Josiah Philips," Am. Hist. Rev., I, 444. 



Power to Declare Law Unconstitutional 49 

the strict legal sense, as an indication of judicial 
opinion and of the general state of mind toward 
courts and legislatures. Attention has also 
been called to the fact that there was a good deal 
of opposition in the states to the exercise of this 
authority by the courts. Of this I think there 
is little doubt, though evidently there were 
decided differences of opinion. During the whole 
period of the Confederation there were marked 
social and political disturbances. 1 Men of 
substance and of conservative temperament, 
anxious for the establishment of sound govern- 
ment and permanent institutions, were, as 
everyone knows, distressed by the situation v 
There was danger that the legislators represent- 
ing the extreme popular opinion would dis- 
regard fundamental rights of property and of 
individual liberty; many of the popular poli- 
ticians were not ready to acquiesce in the 
political enforcement of fundamental principles 
of the constitution or of individual right, when 
such enforcement meant the annulment of 
measures in which they had particular interest, 
such as the enforced circulation of worthless 

1 There undoubtedly were objections and criticisms. It should 
be noticed, however, that Gerry in the federal Convention, on 
June 4, said: "In some states the judges had actually set aside 
laws, as being against the Constitution. This was done, too, with 
general approbation." 



50 The Courts, the Constitution, and Parties 

paper money in Rhode Island. If this restless, 
popular element had been the chief force and 
influence in establishing our institutions or in 
building and establishing the Constitution of the 
United States, more importance would need 
to be assigned to certain evidences of dissatis- 
faction with judicial determinations; but, as 
everyone knows, such was not the case. In- 
deed, it might justly be said that the popular 
unrest and distrust were elements favoring the 
authority of the courts and the inviolability 
of the constitutions, rather than strong influ- 
ences making for the free power of the legisla- 
ture and the impotence of the courts. The 
conditions in North Carolina 1 and Rhode Island, 
for example, offered strong temptations to the 
courts to act in support of reasonable justice 
and order. 

SEPARATION OF THE POWERS; REVOLUTIONARY 

SENTIMENT 

We have now succeeded in working our way 
back some eight or ten years before the meeting 
of the Philadelphia Convention, and have seen 
that in a few instances cases were decided or 
sentiments were expressed in the state courts 
favorable to the exercise of this judicial author- 

1 The North Carolina situation is in part shown in McRee's 
Life of Iredell, II, ch. xix. The condition is well known. 






Power to Declare Law Unconstitutional 51 

ity, the origin of which we are considering. It 
must be said, however, that we have not suc- 
ceeded in getting back very far; for we must 
once more inquire how it happened that the 
state courts ventured to set themselves up as 
judges of the constitution and to declare acts 
of state legislatures void and of no effect. In 
order to account for this we must find ante- 
cedent conditions accounting for attitudes of 
courts toward constitutions and legislative 
bodies, or accounting for the prevalence of 
these significant principles. Let us first notice 
a fact to which I have already called attention, 1 
namely that the state courts did not assert that 
they were peculiarly and particularly set up as 
guardians of the state constitution or censors 
of legislative action. They maintained that the 
state constitution was binding upon the legis- 
lature and upon the courts, and that the courts 
were not under obligations to put into effect an 
act at variance with the constitution. They 
asserted this power, not because they were 
superior to the legislature, but because they 
were independent. This authority, then, in 
part arose from the recognition of the separa- 

1 1 make no apology for my repetition of this fact; for the 
failure to realize it has vitiated much able discussion of the subject. 
If that point is not made clear or is not accepted, there is no use 
in any prolonged discussion. 



52 The Courts , the Constitution , and Parties 

tion of the powers of government; from the 
conviction that the courts were not under the 
control of a co-ordinate branch of the govern- 
ment, but were entirely able to interpret the 
constitution themselves when acting within 
their own field. It is thus apparent that the 
course which judicial reasoning took was in 
part determined by this principle of the sepa- 
ration of the powers, a sense of independent 
authority and of independent responsibility. 
Someone will say that this assumption of inde- 
pendence is entirely fallacious, that in reality 
the courts were controlling legislation. How- 
ever that may be, the courts, as I have just 
maintained, approached the subject from the 
point of view of independence and not of 
superiority. 

In this connection it may be well to consider 
this principle of the separation of powers of 
government in its origin and its effect. The 
introduction of this doctrine of the separation 
of the powers was due in considerable measure, 
as everyone knows, to the influence of Montes- 
quieu's book on The Spirit of the Law, which 
was often referred to by the men of the later 
eighteenth century. Montesquieu, as all know, 
believed he discovered this principle of the 
separation of the powers in the system of the 



Power to Declare Law Unconstitutional 53 

English government. 1 It is sometimes said that 
in this respect he was entirely mistaken, for, in 
fact, the powers of government were in England 
peculiarly connected and the legislative branch 
of the government was possessed of supreme 
and complete authority. Some aspects of this 
subject I shall take up more fully later on, only 
pointing out the fact now that there was con- 
siderable truth in Montesquieu's assertion; for 
the judges, while doubtless in the eighteenth 
century subject to Parliament, had a position 
of peculiar authority which they had inherited 
from earlier times; they exercised authority 
over all agents of the government instead of 
being compelled to accept the principle that 
the executive agents were acting in accordance 
with direction from a political superior. The 
principle that the king can do no wrong has for 
its corollary the principle, more important than 
the main proposition, that his agents are per- 
sonally responsible. Even in the latter half 
of the eighteenth century, the courts, whatever 
may be said of the theory of English institu- 
tions, occupied a position of substantial freedom. 
They would not or could not, in the eighteenth 
century, have declared a law of Parliament 

x It is noteworthy that John Dickinson did too, though he 
may have been guided by Montesquieu. 



54 The Courts, the Constitution, and Parties 

void; but, as I have said, their relations toward 
administrative officers and their general power 
show that they were in a position of independ- 
ence, dignity, and influence. 

It can hardly be said, however, that the 
American doctrine of the separation of the 
powers was entirely absorbed from Montes- 
quieu. While there are some declarations and 
contentions that point in the direction of 
legislative superiority, the course of American 
constitutional development, from 1760 1 or 
thereabouts, was making for the development 
of a sentiment in favor of the independence of 
the departments and the separation of the 
powers of government. And that principle was 
thoroughly interlocked with the idea of the 
preservation of constitutional order and of 
individual liberty, the two notions which were 
uppermost in the minds of that generation. 

Someone will interpose the objection that, 

1 See, for example, the complaint against "Squire Graball" 
Hutchinson, because of his holding the office of chief justice 
while he held that of lieutenant-governor. See Hosmer, Life of 
Hutchinson, 65-68. See also the statement in Massachusetts in 
1773, during the discussion between Hutchinson and the legisla- 
ture, Writings of Samuel Adams, II, 429; also the declaration 
(1772) in the famous paper on the "Rights of the Colonists," 
where "independent judges" meant "independent as far as possible 
of prince or people," ibid., 357. Notice too the statements of 
Dickinson and the struggle in New York and New Jersey. 






Power to Declare Law Unconstitutional 55 

whatever may have been the theory in the very 
early days, the system, as provided by the 
Constitution of the United States or as worked 
out by the courts, provides for judicial superior- 
ity rather than for separation of the powers and 
distinctness of authority. This may be true; 
but if the principle of separation has been 
broken down, is this not due to the fact that the 
executive and legislative branches have con- 
sidered themselves bound by the decisions of 
the courts? Is not the superiority of the 
courts, if they are now superior, due to general 
governmental conditions and to the acquiescence 
of the political departments in court decisions ? 
This acquiescence has been carried to such an 
extent that, in the vast majority of instances, 
the political branches appear to accept the con- 
clusions of the court as determining what is 
constitutional rather than only as an evidence 
of the opinion of the court and its refusal within 
its own sphere to act in carrying out a law and 
making it effective. Is not this acquiescence 
simply the result of accommodation, the result 
of an attempt to avoid the inconvenience of 
conflicting opinions, rather than an essential part 
of our constitutional system in its theoretical 
aspects ? From a purely theoretical point of 
view the branches of government are separate. 



56 The Courts, the Constitution, and Parties 

Theoretically or hypothetically, this separa- 
tion might result in endless confusion; but 
such confusion would be simply one of the 
theoretical and logical results of the principle 
of the separation of the powers; hence the 
tendency to recognize the judicial decision as 
a final determination of what the Constitution 
is because the court will not participate in 
carrying out the law. No one is bound by 
an unconstitutional law; if our constitutional 
system at the present time includes the prin- 
ciple that the political departments must yield 
to the decisions of the judiciary on the whole 
question of constitutionality, such principle is 
the result of constitutional development and, 
as I have said, of the acquiescence of the politi- 
cal power because of reasons of expediency and 
not because they were primarily and originally 
under the strictest obligation to accept as 
final more than the decision of the court in the 
particular case. A large part of our constitu- 
tional history is the history of an unconscious 
attempt to break down or make viable the 
principle of separation; and as far as the power 
of the courts is concerned and their relation 
to other departments, this breaking down or 
viability has been secured by the readiness of 
the other branches of government to accept 






Power to Declare Law Unconstitutional 57 

as the Constitution what the court says is the 
Constitution. 

Certainly, whatever the practice may be and 
whatever may have been the readiness to accept 
judicial determination as final, it can hardly 
be said even today that in theory the legislature 
is controlled in its legislative capacity by the 
courts. The legislature is not bound by the 
decision of the court to refrain from passing an 
act at variance with the court's decision. Such 
action on the part of the legislature might be 
unwise, but it is certainly not unconstitutional. 
When President Jackson, acting in his legislative 
capacity, vetoed the Bank Bill of 1832, he was 
undoubtedly within his rights, and so he would 
have been had he signed a bill providing for 
an institution which had already been declared 
unconstitutional by the court. No one can 
doubt that Congress is not prohibited by the 
Pollock case from passing an act identically like 
the Income Tax Act, declared unconstitutional 
by the Supreme Court. Such congressional 
action might be unwise or disturbing, but it 
would not be unconstitutional; and if the 
personnel of the Supreme Court of the United 
States has distinctly altered or its opinion and 
sentiment widened in the last fifteen years, 
such an act on the part of Congress might be 



58 The Courts, the Constitution, and Parties 

far from unwise. If the assertions I have here 
made seem extreme — and I can scarcely think 
they will be so considered — there can be no 
doubt in anyone's mind that these principles 
obtained in the early days, when men were 
working on the principle of the separation of 
the powers and when judges were asserting 
their right to independent judgment, in the 
days before the principle of separation had 
been partly vitiated by the acquiescence of 
the political branches. 

Before we consider the problem as to whether 
the President or the executive officers are under 
obligations in all circumstances to receive from 
the court the ultimate interpretation of the 
Constitution and avoid all independent judg- 
ment, we need to remind ourselves that no one 
is bound by an unconstitutional law. To one 
who has studied through the course of Revolu- 
tionary argument, it appears inevitable that 
the courts in part at least must have viewed 
the matter in that simple light when they first 
ventured to declare legislative acts unconsti- 
tutional; they looked at the question prob- 
ably — I say " probably'' because this point is 
hard to demonstrate with absolute certainty — 
from the viewpoint of the litigant who came 
to the court for justice, from the viewpoint 






Power to Declare Law Unconstitutional 59 

of the man who had a right to say he was not 
bound. 

Even when we consider the authority of 
executive officers, the principle at issue is much 
like that discussed in the preceding paragraph. 
Is a person or a department of government 
bound by an unconstitutional act ? Everyone 
will say no, but someone may nevertheless 
assert that the court determines what is con- 
stitutional and what is unconstitutional, and 
thus, instead of upholding the separation of the 
powers, the court has assumed control and 
become the dictator. Can it be said, however, 
that the President of the United States or any 
executive officer is controlled by an unconstitu- 
tional act ? An illustration of what I have in 
mind is presented by the contests in the Recon- 
struction period. The reader of Welles's Diary 
will remember how Welles despaired of trying 
to make General Grant see that he was not 
under obligations to obey an act if that act 
was unconstitutional. Grant maintained that 
he was under obligations to obey a law until 
the Supreme Court declared it unconstitu- 
tional. 1 Such is the natural position of the 

1 "I asked him if Congress could exercise powers not granted 
powers that the States, which made the Constitution, had 
expressly reserved. He thought Congress might pass any law, 
and the President and all others must obey and support it until the 



60 The Courts, the Constitution, and Parties 

layman. Such notions as that have distorted 
our original constitutional system. If the act 
was unconstitutional, Grant was under no 
obligations to abide by it. The question was, 
Was he willing to take the risk that some 
instrumentality of the government would differ 
with him ? 

The President acting in his executive capacity 
may yield to the opinion of the court and 
accept its decisions as practically a part of the 
Constitution; but under the theory of the 
separation of the powers he is not under strict 
technical constitutional obligation. He too 
can interpret the Constitution. This principle 
is illustrated by the struggle between Johnson 
and Congress during the Reconstruction time. 
Secretary Welles, as we have seen, in his inter- 
view with Grant made a vain effort to disclose 
to the military mind the proper principles of 
constitutional law. Johnson apparently did 
not need all this explicit explanation. The 
President is no more bound by an unconstitu- 
tional law than is the court. Johnson refused 
to be bound by the Tenure of Office Act, 1 though 

Supreme Court declared it unconstitutional." — Diary of Gideon 
Welles, III, 177. 

1 It is true that Johnson was possibly not acting in direct 
violation of the Tenure of Office Act when he dismissed Stanton, 
for Stanton had been appointed by Lincoln. The substantial 
fact is, however, I think, correctly stated above. 






Power to Declare Law Unconstitutional 61 

it was passed by a two-thirds vote over his 
veto. No one probably would deny now that 
in so refusing he was within his constitutional 
power. 

If these assertions are true, the President in 
his executive capacity tomorrow would have 
the strict and technical right to refuse to carry 
out an act which he believes to be unconstitu- 
tional, and in doing so would be simply exer- 
cising his right under the principle of the 
separation of the powers of government and 
under the principle that nobody is bound by 
an unconstitutional act. The President can 
interpret the Constitution. A private citizen 
will be liable to punishment in case the courts 
disagree with him. Administrative officers of 
the government under similar circumstances 
may find themselves in the same predicament; 
the President and civil officers of the United 
States may be subjected to impeachment. The 
possibility of conflict of opinion between 
branches of government and the resulting 
uncertainty or confusion are not unnatural 
products of the principle of the separation of 
the powers; and, as I have already asserted, 
largely because of the disadvantages of this 
principle, we have to all intents and purposes 
adopted the doctrine that the Supreme Court 



62 The Courts, the Constitution, and Parties 

does decide what is constitutional and what is 
not. 1 

Again, it may be, the constitutional principles 
which I have here just presented may not be 
acceptable to constitutional jurists. Whether 
these principles be sound or not is, however, 
for our purposes not vital; possibly American 
constitutional law has grown away from its 
early conditions; the principle of separation 
and of judicial independence, not judicial 
superiority, was beyond question distinctly 
put forth by the judges in the early cases, and 
on that basis the courts did, as a historical fact, 
act and assume authority to deny the validity of 
legislation. Time and again the general princi- 
ple was laid down by the courts that they were 
not asserting superiority but only exercising 
their freedom within their own province. 2 

1 Those who doubt the power of the court commonly inquire 
why should courts exercise this power; all explanation of the 
fixity and binding effect of the constitution leaves them uncon- 
vinced of the legitimacy of judicial refusal to be bound by legisla- 
tive enactment. It is only fair to inquire in return why the 
President or an administrative officer should have the power and 
the right to act upon the theory of unconstitutionality. Why 
did Grant have the right to refuse to be bound by an unconstitu- 
tional act of Congress ? Why was President Johnson at liberty 
to refuse? Because he was not bound by an unconstitutional 
act; neither is the court. 

3 See ante, pp. 14, 15, 16, 22, 24. 



>,s 



Power to Declare Law Unconstitutional 63 

FUNDAMENTAL LAW; REVOLUTIONARY 
DOCTRINE, 1760-76 

If I should account in full measure for the 
origin and acceptance of the doctrine of the 
separation of the powers of government, I 
should in very large measure account for the 
independent exercise of judicial power, but 
there would still remain a number of additional 
conditions and factors to be explained and 
accounted for. Of prime importance here is the 
principle that the legislature is bound by the 
constitution or by the fundamental law. Com- 
ment upon this subject is not easy, not 
because of a paucity of proof or evidence, but 
because of the mass of it and its demonstrative 
character. The whole of that generation was 
influenced by the course of Revolutionary 
argument; and that argument was thoroughly 
loaded with the assertions that neither Parlia- 
ment nor any governmental body was possessed 
of complete and unlimited authority. The 
statement of the Declaratory Act of 1766, that 
the Parliament had the right to bind the colonies 
in all cases whatsoever, was repeated over and 
over again in America with words of disapproval 
that developed into expressions of rebellion. 
Authorities were cited, arguments were outlined, 



64 The Courts, the Constitution, and Parties 

pamphlets were written, objections were made, 
against a doctrine of complete legislative 
supremacy, until every man who walked the 
streets of an American town must have been 
firmly convinced of the principle that there 
were rights and privileges beyond legislative 
control. 

The all-pervading character of that as- 
sumption is what I am now endeavoring to 
emphasize; for if we remember its universal 
acceptance, we must recognize the fact that the 
judges were under influence to recognize it 
when cases arose before them as independent 
parts of the government. And in this connec- 
tion it is especially noteworthy that these early 
cases in general involved questions of individual 
right and liberty — the right of trial by jury or 
the right of decent judicial process. If every 
American in the period under consideration was 
thoroughly imbued with the belief that legis- 
latures were not omnipotent, if this was the 
controlling principle of their ordinary thinking 
on governmental matters, if they believed that 
an individual was not bound by an unconstitu- 
tional act, we cannot expect that the courts 
would declare that he was so bound, when they 
had reasonable opportunity in their independent 
position to recognize and proclaim the fact. 



Power to Declare Law Unconstitutional 65 

My emphasis, let me say again, is upon the 
general prevalence and controlling force of 
this sentiment which was in the foreground of 
the American Revolution. Largely from these 
two sentiments, widely if not universally 
accepted and proclaimed during the Revolu- 
tion — namely from the doctrine of the separa- 
tion of the powers and the doctrine that the 
legislature is not possessed of complete author- 
ity — came as a practical fact the assertion of 
the independent right of the courts to judge 
whether or not the legislature had transcended 
its power. 

But we have not finished; for there are still 
many facts and principles to be taken into 
consideration before the historical background 
is by any means entirely exposed. Back of 
this fundamental principle, that legislatures are 
not possessed of all authority, was the belief in 
the existence of a fundamental law in the free 
state — a law which was above all legislative 
action. This belief was firmly held in the 
Revolutionary days preceding the adoption of 
state constitutions. I am speaking of the 
commonly held beliefs, which emerged in 
the course of Revolutionary argument, and 
which led the people to look upon written 
constitutions as of a sacred and inviolable 



66 The Courts, the Constitution, and Parties 

character, 1 when once they were established. 
I am not discussing a vague and uncertain 
notion; I am trying to call adequate attention 
to a feeling and belief, the depth and strength 
of which need to be taken into consideration 
if we would appreciate the fact that they 
underlay judicial decisions and controlled the 
judicial mind. 

Of course such sentiments as these were 
peculiarly strong in men like the judges, who 
had studied the political documents of the 
Revolutionary time with care and who under- 
stood the nature of the American Revolutionary 
argument. But the common man, of the north- 
ern states at least, if not of all the states, must 
have seen these doctrines of inviolable funda- 
mental law put forth over and over again in the 
course of discussion. For the central proposi- 
tion of the Americans was that there was a 
fundamental law superior to all governmental 
enactment; they asserted that Parliament was 
controlled by this fundamental law; the glory 
of the British constitution was that it embodied 
fundamental principles of right and justice; 

1 The two principles in fact go hand in hand, if they are not 
one — the principle that legislatures are bound and the principle 
that in all free states there is a fundamental law. I have chosen 
here to distinguish the principles or to analyze the doctrine into 
its two parts. 



Power to Declare Law Unconstitutional 6j 

and this fundamental law was binding upon 
Parliament an.pl ought to be binding on all 
governments. 

But the existence of the principle of funda- 
mental law does not necessarily mean that the 
court has the right to declare an act unconstitu- 
tional. This is true; I maintain, however, that, 
if all men and all officers are thoroughly imbued 
with this doctrine and recognize it as the con- 
trolling principle of the state, nothing can be 
left for the judges in their judicial capacity 
except to recognize the fact and the principle. 
Acting in their independent position, the judges 
will announce that a law contravening these 
fundamentals does not bind them or the liti- 
gants. Whether the courts will or logically 
must, in American history they did; and they 
did so because of the commonly accepted and 
active principle of American jurisprudence. 
I do not mean to assert that the courts actually 
did adopt the practice of declaring laws void 
because contrary to the fundamental law as 
long as that law was unwritten and not formally 
announced in constitutions; my contention is 
that the continuous declaration that there was 
a fundamental law necessarily made impression 
and established a principle and that when the 
written constitutions were formed and new 



68 The Courts, the Constitution, and Parties 

governments founded, the courts were prepared 
to put into actual operation the principle of 
fundamental law. 1 

In this country this principle of the existence 
of fundamental law was first clearly stated in 
one of the most popular and influential pam- 
phlets of the early Revolutionary days — Otis' 
The Rights of the British Colonies Asserted and 
Proved (1764). Otis says among other things, 
"The supreme legislature cannot justly assume 
power of ruling by extempore arbitrary decrees, 
but is bound to dispense justice by known 
settled rules, and by duly authorized independ- 
ent judges 2 (p. 55) These are their 

1 As I point out later, it was a mooted question whether the 
courts would actually exercise the power of declaring a law void 
because it violated fundamental principles of justice. But 
whether they did so or not, the way for the simpler doctrine, the 
power and duty of the court to declare a law void because con- 
trary to the fundamental law embodied in a written constitution, 
was prepared by the old assertions of fundamental law, the 
assertions which played so prominent a part in the whole Revolu- 
tionary argument. 

2 Of course the sentiment as here expressed was taken from 
Locke: "And so, whoever has the legislative or supreme power of 
any commonwealth, is bound to govern by established standing 
laws, promulgated and known to the people, and not by extempore 
decrees, by indifferent and upright judges, who are to decide con- 
troversies by those laws." — Second essay, § 131; see also §§ 135, 
142, etc. 

It may be contended that Locke, whose influence was exceed- 
ingly great during the period of the American Revolution and 
who was very freely and frequently referred to, gave by his 



Power to Declare Law Unconstitutional 69 

bounds, which by God and nature are fixed, 
hitherto have they a right to come, and no 

further These are the first principles of 

law and justice, and the great barriers of a free 
state, and of the British constitution in particu- 
lar. To say the parliament is absolute and 
arbitrary, is a contradiction. The Parliament 

writings an argument in favor of the omnipotence of the legislature 
inasmuch as he so frequently speaks of the extent of legislative 
authority. It is perfectly plain, however, that the main result of 
Locke's second treatise on government is the assurance that no 
government is possessed of supreme and arbitrary authority; to 
establish that principle his writings were used during the Revolu- 
tionary period. Locke's writings are of course of great moment 
as marking the end of the struggle of the seventeenth century to 
assert legislative power as over against royal authority, and mark 
the central point in the rise of the doctrine of parliamentary 
sovereignty and supremacy. While Locke was maintaining the 
principle of the authority of Parliament as against the king, he 
laid down, as I have said, long and substantial arguments against 
the existence of arbitrary power; and the whole course and drift 
of his argument was used by the American writers and pam- 
phleteers as conclusive proof of the existence of rights and privi- 
leges which were authoritatively binding upon all governmental 
agencies. The very foundation of the American idea of liberty 
was that there should be a "standing rule to live by" (Locke, 
§ 22). But the Americans carried this farther than Locke did 
in some portions of his influential essay. They contended in 
favor of a law binding on the legislature, while Locke does not 
always make that principle clear. Compare § 22 and § 222. 
. "Who are a free people?" said Dickinson. "Not those, over 
whom government is reasonably and equitably exercised, but 
those, who live under a government so constitutionally checked 
and controuled, that proper provision is made against its being 
otherwise exercised." — Writings of John Dickinson in Memoirs of 
the Historical Society of Pennsylvania, XIV, 356. 



70 The Courts, the Constitution, and Parties 

cannot make 2 and 2, 5: Omnipotency cannot 
do it. The supreme power in a state, is jus 
dicer e orAy:— jus dare, strictly speaking, belongs 
alone to God " (p. 70). It is, however, unneces- 
sary to multiply quotations, although it is only 
by reading these contemporary documents that 
one can get anything like a comprehensive 
impression as to the extent to which men ap- 
pealed to this principle. 

No one who knows anything of the Revolu- 
tion can doubt the immense influence of James 
Otis and his writings in forming opinion and the 
basis for argument and theory. I am inclined 
to think that Otis was in large measure respon- 
sible for the main drift of the documents put 
forward by Massachusetts in 1768, which were 
doubtless known to the reading public in 
America. One of these documents, the Circu- 
lar Letter, was, of course, widely distributed, 
and probably every lawyer and politician, from 
one end of the land to the other, knew its con- 
tents and was familiar with its principles. The 
Circular Letter contains the central element 
of the American argument in the Revolution. 
This letter declares "That in all free States 
the Constitution is fixd; and as the supreme 
Legislative derives its Power and Authority 
from the Constitution, it cannot overleap the 



Power to Declare Law Unconstitutional 71 

Bounds of it without destroying its own founda- 
tion: That the Constitution ascertains and 
limits both Sovereignty and allegiance, and 
therefore, his Majestys American Subjects who 
acknowledge themselves bound by the Ties 
of Allegiance, have an equitable Claim to the 
full enjoym 1 of the fundamental Rules of the 
British Constitution. That it is an essential, 
unalterable Right in nature, ingrafted into the 
British Constitution, as a fundamental Law 
.... that what a man has honestly acquird is 
absolutely his own . . . . ,}1 

The other letters of which I have spoken 
reiterate this doctrine of fundamental law. 
"The supreme legislative, in every free state, 
derives its power from the constitution; by 
the fundamental rules of which, it is bounded 
and circumscribed" (ibid., 134). "There are, 
my Lord, fundamental rules of the constitution, 
which, it is humbly presumed, neither the 
supreme legislative nor the supreme executive 
can alter. In all free states, the constitution is 
fixed; it is from thence, that the legislative 
derives its authority; therefore it cannot 
change the constitution without destroying its 
own foundation" (ibid., 156). "But, in all 
free states, the constitution is fixed; it is from 

1 Writings of Samuel Adams, I, 185. 



72 The Courts, the Constitution, and Parties 

thence, that the supreme legislative, as well as 
the supreme executive derives its authority. 
Neither, then, can break through the funda- 
mental rules of the constitution, without 
destroying their own foundation" (ibid., 170). 1 

Perhaps these citations are alone sufficient 
to establish my assertion that a central cardinal 
element of American contention against Great 
Britain was that the legislature could not over- 
step its authority and that such principles were 
firmly fixed in the English system. It was 
characteristic of the American Revolution that, 
as in other English revolutions, men contended 
that they already possessed rights and privi- 
leges, which in reality they were seeking to 
establish. 

The Circular Letter and the other letters or 
documents of 1768, which have just been 
quoted, were probably drafted by Samuel 
Adams, but, as I have said, the line of argument 

1 Similar expression found ibid., pp. 174 and 175, 180, 190, 196. 
See for fundamental principles, "Rights of the Colonists," ibid., 
II, 350 ff. See also ibid., 452, where the House of Representatives 
in Massachusetts is engaged in this famous argument with 
Hutchinson: "Your Excellency has not thought proper, to 
attempt to confute the reasoning of a learned writer on the laws 
of nature and of nations, quoted by us on this occasion, to shew 
that the authority of the Legislature does not extend so far as the 
fundamentals of the constitution . . . .", etc. See also ibid., 325 
(1772), with references to Vattel and Locke. 



Power to Declare Law Unconstitutional 73 

was probably furnished by Otis. Once again 
we are led back to Otis' widely read pamphlet, 
and there we find the source of his statement. 1 
He gives an excerpt from VattePs Law of Nature 
and of Nations. Speaking of the legislative 
power Vattel says: "It is here demanded 
whether, if their power extends so far as to the 
fundamental laws, they may change the con- 
stitution of the state ? The principles we have 
laid down lead us to decide this point with 
certainty, that the authority of these legislators 
does not extend so far, and that they ought to 
consider the fundamental laws as sacred, if the 
nation has not in very express terms given them 
the power to change them. For the constitu- 
tion of the state ought to be fixed; and since 
that was first established by the nation, which 
afterwards trusted certain persons with the 
legislative power, the fundamental laws are 
excepted from their commission." In another 
portion of the paragraph from which Otis 
quoted these words — in fact in the very next 
sentence — Vattel says, "In short, it is from 
the constitution that those legislators derive 
their power: how then can they change it 

1 Otis, Rights of the Colonists, 109. The words quoted appear 
in Otis' pamphlet, in a footnote to a memorial transmitted by the 
Massachusetts House to their agent in England. 



74 The Courts, the Constitution, and Parties 

without destroying the foundation of their own 
authority ?" 

Naturally these assertions and this idea were 
taken up and expressed by the courts, and the 
source is evident. Whether they gathered the 
statement of the principle first from the Cir- 
cular Letter or from Otis' pamphlet is im- 
material. In the case of Bayard vs. Singleton 1 
and in Varnum's argument in Trevett vs. Weeden, 
two of the cases already referred to among the 
state decisions between 1776 and 1787, we find 
the assertion that the legislature cannot violate 
the constitution without destroying its own 
foundation. Varnum quoted at length from 
Vattel. 

1 James Iredell of North Carolina, who became a federal judge 
after the founding of the federal government, was strongly of the 
opinion that a court had the power and the duty to declare a 
law void. He was much interested in the case of Bayard vs. 
Singleton and his letters at that time (1786-87), one a public letter 
printed in the press, fully discloses the line of thought. It was 
consonant in most respects with that of Otis on the fundamental 
law. Judging from Iredell's expression, one would believe he had 
read Vattel. See especially McKee, Life and Corr. of Iredell, 
II, 173. His letter discloses the intimate connection between 
this argument in defense of the court's right and the experiences 
of the Revolution: "We were not ignorant of the theory of the 
necessity of the legislature being absolute in all cases, because it 
was the great ground of the British pretenses" (ibid., 146). 
"Without an express Constitution the powers of the legislature 
would undoubtedly have been absolute (as the Parliament of 
Great Britain is held to be), and any act passed, not inconsistent 
with natural justice (for that curb is avowed by the judges even in 






Power to Declare Law Unconstitutional 75 

NATURAL RIGHTS: THE PERIOD FROM 1760-76 

The Americans asserted that men were 
possessed of certain natural rights which no 
government could take away. It was the glory 
of the British constitution that it maintained 
and assured these rights. Modern writers 
and readers appear not to appreciate the 
strength and nature of the natural-right argu- 
ment. Limitations arising from natural rights 
were looked upon by the men of the Revolution 
as legal limitations. When they said that 
Parliament had no authority to disregard 
natural rights, they did not mean that it was 
morally wrong or cruel or unjust, but that such 
disregard was beyond the competence of Parlia- 
ment or any other body possessing govern- 
mental authority. 1 Natural law protecting 

England), would have been binding on the people. The experi- 
ence of the evils which the American war fully disclosed, attending 
an absolute power in a legislative body, suggested the propriety 
of a real, original contract between the people and this future 
government, such, perhaps, as there has been no instance of 
in the world but in America" {ibid., 172). The whole of these 
letters should be carefully read, for Iredell had as much influence 
probably as anyone, possibly more than anyone, in maintaining 
the doctrine of judicial power. His words show, as I have said, 
that the power of the court was a product of Revolutionary 
experiences and of Revolutionary argument. 

1 The remarks of Professor Thayer on this subject appear to 
be peculiarly deficient in appreciation of the vitality of this 
belief. The colonists were not arguing that there were certain 



76 The Courts, the Constitution, and Parties 

natural rights was law and should be recog- 
nized by every governmental functionary. 
They maintained, over and over again, that 
Englishmen had a constitution and that that 
constitution embodied principles of natural 
justice which were beyond the reach of legis- 
lative action, a constitution which was fixed and 
unalterable by legislative enactment and above 
legislative caprice. Once more, we must evalu- 
ate fully the strength of this contention and 
the force of this argument, to understand the 
mental background and the legal thinking of 
statesmen and lawyers of the Revolutionary 
period and of the years immediately following. 
Even if we could refer to no particular and 
precise declarations, made in the days of 
Revolutionary argument, 1760-76, that courts 
of law are under obligations to refuse to con- 
vague notions of justice which it would be wrong to disregard; 
they asserted that they had rights and that these rights could 
not legally be taken away. They were not rebels; they were 
preserving constitutional limitations. Compare J. B. Thayer, 
Legal Essays 6, 7. It ought not to be difficult to conceive of 
colonists and lawyers, acquainted with the common law, insist- 
ing on the binding character of principles of right. The princi- 
ples of justice, which were supposed to be the glory of the 
common law, were daily announced by courts; to give expression 
to them was in considerable degree the function of the common- 
law courts. In cases not involving the validity of legislation we 
still see courts deciding cases at common law 011 the ground that 
to decide otherwise would be to disregard natural justice. 



Power to Declare Law Unconstitutional 77 

sider valid any legislative act violating the 
fundamental law or encroaching upon reserved 
natural rights, we might still be ready to 
assert that, when the time came and oppor- 
tunity offered, courts would be likely to 
announce and apply those principles, espe- 
cially in extreme cases, where fundamental 
rights were encroached upon by legislative act, 
and, more especially still, where those funda- 
mental rights had distinct guaranty in the 
written constitution. The student of Ameri- 
can constitutional law knows full well that it 
long remained a question whether the courts 
would not recognize principles of natural justice 
and the existence of natural right as constituting 
direct limitations upon legislative authority, 
even where no special constitutional prohibi- 
tion was involved. For some time, after the 
adoption of the state constitutions, there was 
uncertainty as to whether the courts would 
content themselves with looking on the writ- 
ten constitution as a law emanating from the 
people and therefore binding on the legislature; 
it was uncertain whether they would not go 
farther, even to the extent of maintaining 
natural rights which were not explicitly pro- 
tected by constitutional guaranty. It is plain 
too that the courts were relieved from this 



78 The Courts, the Constitution, and Parties 

difficulty by the bills of rights constituting 
express constitutional limitations, to which the 
courts could give wide bearing as limitations 
upon interference with natural rights and 
justice. 1 Such an attitude on the part of the 
courts was a product of the prevalence of the 
Revolutionary opinion that natural law was 
real law, that natural justice was a real constitu- 
tional limitation, and that the legislative body 
in every free state is limited by fundamental 
principles of individual right and liberty. 

I have said that, even if there were, in the 
early Revolutionary period, no reference to the 
duty of the courts to declare acts contrary to 
natural justice or to fundamental law void 
and of no effect, so deep and assured was this 
feeling and so strong was the principle, that we 
might expect the courts to act accordingly, 
when once Americans courts, American legisla- 
tures, and American law were established. 
Such a judicial position would have been a 
natural product of Revolutionary opinion. 
But as a matter of fact, there were a number of 
such references to just such judicial power and 

1 The broad general statements of the bills of rights, espe- 
cially the one about "due process of law," enabled the courts to 
assume the position that they enforced only the written law; 
but they held that those rights existed anterior to the state, and 
they recognized those rights as constitutionally secured by these 
blanket provisions of the constitution. 



Power to Declare Law Unconstitutional 79 

obligation. The currency of this notion was 
doubtless due in the first place to Otis' famous 
speech on the Writs of Assistance, in which he 
maintained that the courts would pass such 
an act of Parliament "into disuse." Such a 
notion, backed by Otis' almost unbounded 
popularity and fiery zeal, took hold of the 
thought and imagination of the New England 
men. Again in Otis' pamphlet to which I have 
already referred, which was doubtless read with 
great interest on both sides of the water, we 
find a like declaration. "If the reasons," he 
says, "that can be given against an act, are 
such as plainly demonstrate that it is against 
natural equity, the executive courts will adjudge 
such act void. It may be questioned by some, 
though I make no doubt of it, whether they are 
not obliged by their oaths to adjudge such acts 
void." 1 In the appendix to this pamphlet 
appears the substance of a memorial presented 
to the House of Representatives in Massa- 
chusetts in pursuance of the instructions of 
Boston to its representatives; and in this 

1 Otis said in his speech against writs of assistance: "As to 
Acts of Parliament, an Act against the Constitution is void: 
an Act against natural Equity is void : and if an Act of Parlia- 
ment should be made, in the very Words of this Petition, it 
would be void. The Executive Courts must pass such Acts into 
disuse — 8. Rep. 118. from Viner. — 'Reason of y e Com Law to 
control an Act of Parliament." Quincy's Reports (Mass.) 474. 



80 The Courts, the Constitution, and Parties 

connection we find references to the cases in 
the English courts and the opinions of justices 
declaring that acts of Parliament made against 
natural equity are void: "The judges of Eng- 
land have declared in favour of these senti- 
ments, when they expressly declare, that acts of 
parliament against natural equity are void. 
That acts against the fundamental principles 
of the British constitution are void." 

John Adams, in making his plea to the 
governor in council asking that the courts of 
justice should be allowed to go on without 
reference to the Stamp Act, said: "The Stamp 
Act, I take it, is utterly void and of no binding 
force upon us; for it is against our Rights as 
Men and our Privileges as Englishmen. An 
Act made in Defiance of the first Principles of 

Justice Parliaments may err; they are 

not infallible; they have been refused to be 
submitted to. An Act making the King's 
Proclamation to be Law, the Executive Power 

adjudged absolutely void There are 

certain Principles fixed unalterably in Nature." 1 
Otis made an extended argument as a colleague 

1 Quincy Reports 200. In 1765 Hutchinson said, speaking of 
opposition of the Stamp Act, "The prevailing reason at this time 
is, that the Act of Parliament is against Magna Charta, and the 
natural Rights of Englishmen, and therefore, according to Lord 
Coke, null and void." — Quincy's Reports (Mass.) 527, note. 






Power to Declare Law Unconstitutional 81 

of Adams. Referring to Malloy, Be Jure Mar., 
he said, "the Laws which forbid a Man to 
pursue his Right one Way, ought to be under- 
stood with this equitable Restriction, that one 
finds Judges to whom he may apply. When 
there are no Courts of Law to appeal to, it is 
then we must have Recourse to the Law of 
Nature." 1 

There can be no doubt that such cases and 
opinions as Otis gives, in the pamphlet above 

1 Ibid., 204. "His Excellency the Governour" expressed this 
opinion: "The Arguments made Use of, both by Mr. Adams and 
you, would be very pertinent to induce the Judges of the Superiour 
Court to think the Act of no Validity, and that therefore they 
should pay no Regard to it; but the Question with me is whether 
that very Thing don't argue the Impropriety of our Intermed. 
dling in a Matter which solely belongs to them to judge of in their 
Judicial Department" {ibid., 206). 

Governor Hutchinson in writing to Jackson, agent of the 
province in England, after saying that he thought that the Stamp 
Act must be valid because Parliament passed it, said "but our 
friends to liberty take advantage of a maxim they find in Lord 
Coke that an act of Parliament against Magna Charta or the 
peculiar rights of Englishmen is ipso facto void." — Quincy's 
Reports 441; see also ibid., 444-45. 

It is interesting to notice that Quincy, who was the reporter 
of the important decisions in the volume above referred to, wrote 
"qu" — that is, query — opposite the statements of the power of 
Parliament in Blackstone's Commentaries, I, 49, 97, 161, 189, and 
made references to Vattel's Law of Nations, Book I, chap, iii, 
pp. 15-19, and to Furneaux's Letter to Blackstone. See the 
notes in Quincy's Reports 527. 

In a case before the General Court of Virginia in 1772 George 
Mason, as reported by Thomas Jefferson, argued that the provi- 



82 The Courts, the Constitution, and Parties 

referred to, were very familiar to the lawyers 
of that time who were conversant with the 
decisions of the English courts and with the 
great text-writers on English law. While it 
cannot be proved as a mathematical demonstra- 
tion that all well-read lawyers at that period 
were familiar with these decisions and opinions, 
it is a reasonable or inevitable inference; but 
if they were not familiar, the quotations and 
citations which Otis gave should be sufficient 
to introduce them to the main principle. Con- 
cerning the background of such principles as 
this, namely the right of the court to pass an 
act of Parliament into disuse, I shall have some- 
thing to say farther on. I am now confining 
my attention to what was palpably present in 
the minds of the men of the early Revolutionary 
days and to those general principles which must 
have taken strong hold on lawyers and judges 

sion of the statutes of the Colony of 1682 that "all Indians which 
shall hereafter be sold by our neighboring Indians .... are 
hereby adjudged, deemed and taken to be slaves" was "originally 
void, because contrary to natural right and justice," and cited 
Coke and Hobart. — Robin et at. vs. Hardaway et al., Jefferson 
(Va.) Reports 109, 113. 

The character of the legal references to which the men of the 
time used to support their position that an act of Parliament made 
against natural equity would be void, can be seen from the refer- 
ences made in Otis' Rights of the Colonies Asserted and Proved, no, 
note. From these references it is evident that Otis had carefully 
followed and examined the English authorities. 



Power to Declare Law Unconstitutional 8$ 

and affected their opinions, when they came 
to the point of interpreting American constitu- 
tions and building up the system of American 
constitutional law. 

The function of common-law courts of 
declaring what the law is frequently involves 
in reality the duty of asserting the fundamental 
principles of justice which appeal to the court 
as part and parcel of the law. In the earlier 
days, and more or less ever since, the courts have 
professed, even when actually engaged in the 
making of law, to be engaged in the announce- 
ment of the maxims of substantial justice 
which were known to the law. 1 It was much 

1 To one who is not bound by the chains of mathematical logic 
and is not looking only for technically legal precedents, the prac- 
tice of courts of interpreting statutes in the light of common-law 
principles, of torturing statutes almost out of recognition into 
conformity with the principles of justice or, as the old English 
judges might have said, into conformity with dictates of reason 
and the common law, is of value in any effort to understand the 
attitude of courts to legislation and to natural right. Such 
juggling with statutes was only the half-way house to a full 
refusal to accept and apply the statute. We see, for example, in 
Page vs. Pendleton et al. (1793) (Wythe [Va.] Reports 211, Court 
of Chancery) an evident determination to enforce justice and 
natural right. "If this," says Judge Wythe in a note, "seems 
contrary to what is called authority .... the publisher of the 
opinion will be against the authority, when, in a question depend- 
ing, like the present, on the law of nature, the authority is against 
reason, which is affirmed to be the case here." At considerable 
pains and trouble the court reaches the conclusion that because 
the legislature had no right to do a certain thing, the legislature 



84 The Courts, the Constitution, and Parties 

easier for a common-law court to bring in and 
apply such principles and thus in a way to 
build up a great body of right, than would have 
been the case, had the courts been, from time 
immemorial, accustomed only to interpret and 
apply written legislative enactment. 

In attempting to account for the legal and 
constitutional principles considered by judges 
to be the fundamental principle of American 
law, we have thus far noticed a series of facts 
and of sentiments of vital importance when 
America was setting up her principles of 
government as over against the English Parlia- 
mentarian: (i) the fact that the main conten- 
tion of the Americans was that Parliament was 
not possessed of absolute authority; (2) the 
belief that there were certain principles of right 
and justice which all governments must con- 
sider and that the obligation to consider them 

could not have intended to do what it probably did intend to do. 
But in the course of the discussion the court says (p. 215): "If 
the parliament of Great-britain should, by an act, declare the 
rights of creditors, of any other, or all other countries, to money 
due from british subjects, to be extinguished, all courts, perhaps 
those of Westminster hall not excepted, would adjure [abjure] 
such legislative omnipotence arrogated by the parliament, but 
that parliament hath not less power than any other legislature." 
This is an indication that even as late as 1793, an American lawyer 
could believe Parliament not possessed of legislative omnipotence 
and could believe the English courts possessed power to reject 
an act of Parliament. 



Power to Declare Law Unconstitutional 85 

constituted a legal limitation on governmental 
authority; (3) the assertion that these funda- 
mentals were embodied in the English constitu- 
tion, which was fundamental and unchangeable 
because it embodied these fundamental and 
unchangeable principles; (4) the conviction 
that the courts were under obligations to declare 
void an act of Parliament violating the princi- 
ples of natural justice and reason, a conviction 
supported by reference to English decisions 
and opinions of great judges; (5) a declaration, 
closely connected with the preceding, that there 
is a fundamental law which the legislature can- 
not change, a principle, however, which did not 
come by any means solely through a perusal of 
English authority and legal decisions, but from 
text-writers of continental Europe who em- 
bodied the principles of philosophic thinking. I 
shall now proceed to consider more fully the legal 
and philosophical background, first referring to 
the principles of the English law and next to 
the general principles of continental publicists. 

FUNDAMENTAL LAW; ENGLISH AND CONTI- 
NENTAL BACKGROUND 

If we should seek for the beginnings of the 
principle in English history that there was a 
fundamental law of the constitution, our way 



86 The Courts, the Constitution, and Parties 

would lead us well back into the Middle Ages; 
we should need to consider the characteristics 
of feudalism, and, back of all that, the primi- 
tive regard for unchanging custom. It is natu- 
rally impossible for us to attempt any such 
task in a paper of this kind. I must refer my 
readers to the admirable chapter on "Funda- 
mental Law" in Professor Mcllwain's book, 
The High Court of Parliament, where the extent 
and character of this belief is traced from 
early times down through the seventeenth 
century. Professor Mcllwain's chapter is a 
signal contribution; and yet we doubtless 
remember that we were all brought up to think 
that the Englishmen, in the course of constitu- 
tional development, were continually insisting, 
not so much upon new rights, as on the 
recognition of the old and established prin- 
ciples of freedom. This assertion of a funda- 
mental law above the king was made over and 
over again in the course of passing centu- 
ries; and it appeared also in books to 
which the American colonies had access. 1 

1 Magna Charta came to be viewed as unalterable. "It was 
not Magna Carta," says Professor Adams, "but the circum- 
stances of the future which gave to the fact that there was a body 

of law above the king creative power in English history The 

great work of Magna Carta was not done by its specific provi- 
sions; the secret of its influence is to be found in its underlying 
idea." — Am. Hist. Rev., XIII, 238, n. There is evidence also of the 



Power to Declare Law Unconstitutional 87 

In the early activities of Parliament the 
notion prevailed that it was the business of 
Parliament rather to declare the law than make 
new laws; and in this respect the activity of 
Parliament was not markedly distinct from that 
of the courts; neither Parliament nor court were 
engaged in passing new law but in declaring 

recognition of the fundamental law not necessarily embodied in 
Magna Charta. 

How far back in American history this notion can be traced is 
evidenced in some degree by the facts that gave rise to the Body of 
Liberties. The colonists of Massachusetts, in fear of the growth 
of unrestrained government, desired something in the nature of a 
Magna Charta. The Body of Liberties, it is true, was drawn up 
and announced by the General Court apparently under popular 
pressure; the laws were intended to guide and limit the magis- 
trates; but it seems plain that the people wanted the law fixed 
and feared governmental power. The intimate connection be- 
tween the principles of New England and the contemporary 
struggles of old England is evident, as is also the American inheri- 
tance of the idea of fundamental law. "The deputies having con- 
ceived great danger to our state, in regard that our magistrates, 
for want of positive laws, in many cases, might proceed according 
to their discretions, it was agreed that some men should be 
appointed to frame a body of grounds of laws, in resemblance to a 
Magna Charta, which, being allowed by some of the ministers, and 
the general court, should be received for fundamental laws." — 
Winthrop's Journal, I, 151 (Hosmer's ed.). 

"The people had long desired a body of laws, and thought 
their condition very unsafe, while so much power rested in the 
discretion of magistrates. Divers attempts had been made at 
former courts, and the matter referred to some of the magistrates 
and some of the elders; but still it came to no effect; for, being 
committed to the care of many, whatsoever was done by some, was 
still disliked or neglected by others. At last it was referred to 
Mr. Cotton and Mr. Nathaniel Warde, etc., and each of them 



88 The Courts, the Constitution, and Parties 

the old and especially fundamental law. When 
the great contest came on between Charles I 
and Parliament, the question at first was not 
whether Parliament or the king should rule 
but whether the king should be held bound by 
fundamental law. "All our Petition," said Pym, 
"is for the Laws of England, and this Power 
seems to be another distinct Power from the 
Power of the Law : I know how to add Sovereign 
to his Person, but not to his Power: and we 
cannot leave to him a Sovereign Power: Also 
we never were possessed of it." 

framed a model, which were presented to this general court, and 
by them committed to the governor and deputy and some others 
to consider of, and so prepare it for the court in the 3d month 
next. Two great reasons there were, which caused most of the 
magistrates and some of the elders not to be very forward in this 
matter. One was, want of sufficient experience of the nature and 
disposition of the people, considered with the condition of the 
country and other circumstances, which made them conceive, that 
such laws would be fittest for us, which should arise pro re nata 
upon occasions, etc., and so the laws of England and other states 
grew, and therefore the fundamental laws of England are called 
customs, consuetudines [italics not in original]. 2. For that it 
would professedly transgress the limits of our charter, which 
provide, we shall make no laws repugnant to the laws of England, 
and that we were assured we must do. But to raise up laws by 
practice and custom had been no transgression; as in our church 
discipline, and in matters of marriage, to make a law, that mar- 
riages should not be solemnized by ministers, is repugnant to the 
laws of England; but to bring it to a custom by practice for the 
magistrates to perform it, is no law made repugnant, etc. At 
length (to satisfy the people) it proceeded, and the two model? 



Power to Declare Law Unconstitutional 89 

Everyone knows that in the course of the 
great English rebellion, as Parliamentary power 
developed, men began to consider how they 
could place limits even on the power of Parlia- 
ment. This problem was one of consuming 
interest and of great perplexity to those who 
were troubled by the difficulties of the time, 
especially by the troubles arising between 1647 
and 1654 or 1655; we all know too that the 
Instrument of Government definitely asserted 
that certain provisions should be forever 
unalterable. The controversy between Parlia- 
ment and the king, the events of the years of 
the Restoration, and the establishment of a 

were digested with divers alterations and additions, and abbre- 
viated and sent to every town, (12,) to be considered of first by 
the magistrates and elders, and then to be published by the con- 
stables to all the people, that if any man should think fit, that 
any thing therein ought to be altered, he might acquaint some of 
the deputies herewith against the next court." — Ibid., 323-24. 

"This session continued three weeks, and established 100 laws, 
which were called the Body of Liberties. They had been com- 
posed by Mr. Nathaniel Ward, (sometime pastor of the church 
of Ipswich: he had been a minister in England, and formerly a 
student and practiser in the course of the common law,) and had 
been revised and altered by the court, and sent forth into every 
town to be further considered of, and now again in this court, they 
were revised, amended, and presented, and so established for three 
years, by that experience to have them fully amended and estab- 
lished to be perpetual." — Ibid., II, 48-49. 

The steps taken to secure the approbation of the people 
indicate that these laws were intended to be fundamental and 
unchanging. The General Court was in theory the whole 
corporation — the commonwealth. 



90 The Courts, the Constitution, and Parties 

new monarch by Parliamentary authority in 
the Revolution of 1688, mark the foundation 
of the fact of Parliamentary sovereignty and 
supremacy, a fact which soon became a con- 
stitutional theory. The constitutional ques- 
tion, in other words, in the middle years of the 
great Rebellion, was whether fundamental law 
could be established, recognized, and enforced 
against the new sovereign, the Parliament. 
This was the thought that perplexed the army, 
and this thought was back of the Agreement 
of the People and the Heads of Proposals. 1 
One who would understand the development 
of American principles of government and 
constitutional law must bear in mind that 
the English colonies separated from England 

1 See The Clarke Papers (Camden Society) ; W. Rothschild, Der 
Gedanke der geschriebenen Verfassung in der Englischen Revolution^ 
It is only necessary to remember that the New England colonies 
were the fruit of the English Rebellion in its early phases, and 
that English and American Independents were not distinctly 
separated for years after the early settlement, to understand why 
the idea of fundamental law in the nature of a Magna Charta 
should be the demand of the New England men. 

The Americans, irrespective of their charters, which they some- 
times looked on as peculiarly fundamental, obtained this doctrine 
(a) from the assertion they found in the books; (b) from their 
retrospection on English history; (c) as a special inheritance 
through colonial history from the days of the early seventeenth 
century. The New England Puritans were moreover of course 
desirous of maintaining the law of God and the Scriptures as 
superior to human enactment. 






Power to Declare Law Unconstitutional 91 

rather in the seventeenth century than in the 
eighteenth century, and that they carried for- 
ward in their thinking and embodied in their 
institutions the principles of liberty and govern- 
ment that were struggled for by the advanced 
party of the great rebellion. 

The American colonists, therefore, when they 
contested the power of Parliament, had behind 
them many centuries of English doctrine, while 
the supremacy or sovereignty of Parliament 
was comparatively new. Moreover, as I have 
said, in the books and cases to which these men 
referred, they could find much expression of the 
existence of fundamental law, and they thus 
obtained the written approval of the stand 
which they were desirous to take against 
Parliament. The importance of that position 
and the significance of the colonial argument 
are of great interest when we remember that, 
in 1765, Parliament, practically for the first 
time in a noticeable way, was asserting abso- 
lute sovereignty as characteristic of its imperial 
power and authority. 

If I have sufficiently emphasized the great 
fact that Englishmen had asserted over and 
over again for centuries that there was a funda- 
mental law of the land and also the fact that 
such assertion appeared in the books which 



92 The Courts, the Constitution, and Parties 

colonial lawyers read/ it need not surprise us 
to find that the American lawyers took up that 
doctrine in the controversies against Great 
Britain and were prepared to make it a most 
vital and determinative principle in the inter- 
pretation of the written constitution. Here 
we find the actual, vital development of a great 
race instinct and ideal. 

The notion of fundamental law, however, was 
not confined to Englishmen alone or to the 
English publicists. It appeared in the writings 

1 The following statements in Gray's notes on the writ of 
assistance admirably sum up the facts: "But Otis, while he 
recognized the jurisdiction of Parliament over the Colonies, 
denied that it was the final arbiter of the justice and constitu- 
tionality of its own acts; and relying upon words of the greatest 
English lawyers, and putting out of sight the circumstances under 
which they were uttered, contended that the validity of statutes 
must be judged by the Courts of Justice; and thus foreshadowed 
the principle of American Constitutional Law, that it is the duty 
of the judiciary to declare unconstitutional statutes void. 

"His main reliance was the well-known statement of Lord 
Coke in Dr. Bonham's case — It appeareth in our books, that in 
many cases the common law will control Acts of Parliament and 
adjudge them to be utterly void; for where an Act of Parliament 
is against common right and reason or repugnant or impossible 
to be performed, the common law will control it and adjudge it 
to be void. Otis seems also to have had in mind the equally 
familiar dictum of Lord Hobart — Even an Act of Parliament 
made against natural equity, as to make a man judge in his own 
case, is void in itself: ior jura naturae sunt immutabilia, and they 
are leges legum. Lord Holt is reported to have said, What my 
Lord Coke says in Dr. Bonham's case in his 8 Rep. is far from 
any extravagancy, for it is a very reasonable and true saying, 






Power to Declare Law Unconstitutional 93 

of continental theorists who were endeavoring 
to map out a system of government and to 
intimate that government was for the good of 
mankind and should not be entirely arbitrary. 
Once again we should be carried far back along 
the pathway of history, should we attempt to 
trace the development or the assertions of this 
principle; this I shall not attempt to do. I will 
content myself with pointing again to those 
assertions of Vattel 1 to which I have already 

That if an Act of Parliament should ordain that the same person 
should be party and judge, or what is the same thing, judge in his 
own cause, it would be a void Act of Parliament. 

"The law was laid down in the same way, on the authority of 
the above cases, in Bacon's Abridgement, first published in 1735; 
in Viner's Abridgment, published 1 741-51, from which Otis 
quoted it; and in Comyn's Digest, published 1762-67, but written 
more than twenty years before. And there are older authorities 
to the same effect. So that at the time of Otis' agreement 
[argument] his position appeared to be supported by some of the 
highest authorities in the English law. 

"The same doctrine was repeatedly asserted by Otis and was 
a favorite in the Colonies before the Revolution. There are later 
dicta of many eminent judges to the effect that a statute may be 
void as exceeding the just limits of legislative power; but it is 
believed there is no instance, except one case in South Carolina ? 
in which an act of the legislature has been set aside by the courts, 
except for conflict with some written constitutional provision." — 
Quincy's (Mass.) Reports, 1761-72, Appendix, 520-29. The 
South Carolina case is the case of Bowman vs. Middleton already 
referred to, 1 Bay (S.C.) 252. 

1 Vattel's volume appeared in 1758 and was almost immediately 
translated into English. He is referred to over and over again by 
the American pamphleteers and he was long looked upon in 



94 The Courts, the Constitution, and Parties 






referred; the notion was of course not original 
with Vattel. It was the characteristic of the 
American Revolutionists that they took theories 
of popular right and of governmental obliga- 
tion with great seriousness and earnestness — 
one might better say with literalness — and 
believed that they were making effective, and 
were called upon to make effective, these great 
philosophic principles of substantial justice. 
They did not believe they were creating them. 

NATURAL RIGHT: ENGLISH AND CONTINENTAL 
BACKGROUND 

Closely allied, as I have already said, with the 
doctrine of fundamental law was the notion of 

America as a fundamental authority. Next to him Grotius and 
Pufendorf appear to be more commonly referred to than any 
other continental publicists. Among the other references to 
Vattel may be mentioned: Writings of Samuel Adams, II, 258, 
3 2 3> 325 ; Life and Writings of Franklin (Macmillan ed.), VI, 
432; I, 142, n; Writings of Madison (Cong, ed.), I, 129, 578, 651; 
II, 249, 309; 1 Dallas (Pa.) 113; 2, 234 (1795); 3 Dallas (1794) 
2; N. J. Reports I, 117 (1791). These references are only indi- 
cations of familiarity with Vattel. 

There appears to be a general impression that the authors 
referred to by the colonists were Blackstone and Montesquieu 
and possibly Rousseau. Men like Wilson referred to the great 
continental publicists freely; and John Adams left a statement 
concerning his reading of them. In my judgment it would be a 
great mistake to include Rousseau at all among those that particu- 
larly influenced the men of the Revolution, as it would also be to 
suppose that Blackstone was followed when his remarks did not 
fit in with Revolutionary theory. 



Power to Declare Law Unconstitutional 95 

natural right. This, too, the colonists took 
literally and with great seriousness. Funda- 
mental law was primarily the embodiment of 
natural justice and reason. The limits of reason 
and of natural justice they considered as legal 
limits upon governmental action and their 
notion of fundamental law was strengthened 
and confirmed by all they read of the existence 
of natural rights. To understand the full 
force of this theory we need to remember how 
frequently, how almost universally, this fact of 
natural right appears in the writings of great 
publicists of the two centuries before the 
Revolution, and we need to remember espe- 
cially the influence of the Reformation, of 
Calvinism, and of Puritanism in begetting the 
notion that men were subject primarily to the 
law of God. But when once we get clearly in 
our minds this broad historical background 
and this politico-theological doctrine, when 
once we realize that Puritanism and Puritanic 
thinking were not dead in New England, even 
in the period when the lawyer and the politician 
were taking the place of the minister and the 
church-teacher as public leaders and guiders of 
public faith, we shall see how it came that these 
fundamental notions of individual rights, ante- 
dating all government and superior to all 



g6 The Courts, the Constitution, and Parties 

human authority, dominated the thinking of 
men in practical affairs of politics. 1 

A quotation from Wilson's law lectures amply 
illustrates my main contention. Commenting 
upon the right of Parliament, he speaks as 
follows: "'I know of no power,' says Sir 
William Blackstone, ' which can control the 
parliament.' His meaning is obviously, that 
he knew no human power sufficient for this 
purpose. But the parliament may, unques- 
tionably, be controlled by natural or revealed 
law, proceeding from divine authority. Is not 
this authority superior to any thing that can 
be enacted by parliament ? Is not this superior 
authority binding upon the courts of justice? 

1 Pollock, in his Expansion of the Common Law (p. 121), says: 
"It was a current opinion among the mediaeval doctors that 
rules of positive municipal law were controlled by the law of 
nature, and not binding if they were contrary to it; though some 
advocates of the Emperor's independent authority in secular 
matters, as against the claim of universal supremacy for the 
Pope, avoided inconvenient consequences by tempering the 
general proposition with a rather strong presumption that the 
acts of the lawful sovereign were right. Opposition to princes 
and rulers in vindication of the law of nature was possible, but 
at the opposer's peril if he were mistaken, and not to be lightly 
entered upon." 

There can be no doubt of the longevity of this doctrine and 
of its having leaked down through the passing ages to the men of 
the American Revolution. The doctrine was always taking 
on new forms, getting new impetus from new ideas and from 
new necessities; but it continued and found its ultimate place of 
rest and of influence in American bills of rights enforced by courts. 



Power to Declare Law Unconstitutional 97 

When repugnant commands are delivered by 
two different authorities, one inferior and the 
other superior; which must be obeyed ? When 
the courts of justice obey the superior author- 
ity, it cannot be said with propriety that they 
control the inferior one; they only declare, as 
it is their duty to declare, that this inferior one 
is controlled by the other, which is superior. 
They do not repeal the act of parliament : they 
pronounce it void, because contrary to an over- 
ruling law. From that overruling law, they 
receive the authority to pronounce such a sen- 
tence. In this derivative view, their sentence 
is of obligation paramount to the act of the 
inferior legislative power. 

"In the United States, the legislative author- 
ity is subjected to another control, beside that 
arising from natural and revealed law; it is 
subjected to the control arising from the 
constitution. From the constitution, the legis- 
lative department, as well as every other part 
of government, derives its power; by the con- 
stitution, the legislative, as well as every other 
department, must be directed; of the constitu- 
tion, no alteration by the legislature can be 
made or authorized. In our system of juris- 
prudence, these positions appear to be incon- 
trovertible. The constitution is the supreme 



98 The Courts, the Constitution, and Parties 

law of the land : to that supreme law every other 
power must be inferior and subordinate 

"This regulation is far fron throwing any 
disparagement upon the legislative authority 
of the United States. It does not confer upon 
the judicial department a power superior, in 
its general nature, to that of the legislature; 
but it confers upon it, in particular instances, 
and for particular purposes, the power of 
declaring and enforcing the superior power 
of the constitution — the supreme law of the 
land." 1 

An examination of these sentences of Wilson's 
lectures will make apparent to anyone the 
main route followed by American lawyers. No 
one has doubt of Wilson's ability as a lawyer. 
No one can read his lectures and not be im- 
pressed with his learning and his knowledge of 
the great writers on law and political philoso- 
phy. He takes issue in various places with 
Blackstone; in these particular sentences he 
contends that the legislature is bound by 
divine law, i.e., by natural law; that courts can 
consequently declare a law encroaching on 
natural justice void, and that the duty of 

1 Wilson's Works (Andrews' ed.), II, 415. I cannot be abso- 
lutely sure that this lecture was actually delivered. From the 
introduction to the first edition of Wilson's lectures (1804) I 
should judge that some of the lectures were not delivered. 



Power to Declare Law Unconstitutional 99 

American courts is made doubly imperative by 
written constitutions which are law. After 
reading these words it is needless to deny that 
the American judges reached their position along 
the old, well-worn route of natural justice and 
fundamental law — the English route — and were 
guided and instructed by the great continental 
European publicists who constantly proclaimed 
natural right. Wilson was one of the three 
federal judges who, in the "first Hayburn case/' 
in April, 1792, just about the time when the 
lecture above quoted was given, declared a law 
of Congress unconstitutional. 

COLONIAL EXPERIENCE: THE ENGLISH EMPIRE 

To make this study anything like complete, 
even in outline — and I have attempted little 
more — I should probably include certain other 
institutional facts of historical growth to which 
I have not referred. I may pass over these 
facts somewhat hastily because they do not 
demand extended comment and because they 
have so frequently been mentioned in discus- 
sions of this subject. The facts I refer to are 
the general character of colonial institutions and 
the practices of the English empire. A num- 
ber of the colonies retained charters of govern- 
ment throughout colonial days. Two of these 



ioo The Courts, the Constitution, and Parties 

colonies were distinctly established as corpora- 
tions with corporation charters, and, though 
the theory was apparently not very active, the 
principle that acts in excess of legislative 
authority are void, like any act of a corporation 
in excess of its authority, must, we may surmise, 
have had some effect on the legal mind. More- 
over, there never had been in America a legisla- 
tive body possessed of all power; this fact, like 
so many others that I have mentioned, probably 
helped to constitute the psychological if not 
the legal basis for the position afterward taken 
by the state courts in declaring state acts con- 
trary to the constitution invalid. 

To this institutional fact, the existence of 
fixed charters, we must add the right of the king 
in council to annul the enactments of colonial 
legislatures and thus to maintain the imperial 
system. This right of annulment, it will be 
contended, was of executive or legislative 
character, rather than judicial. I am not sure 
that there is any validity in insisting that this 
sharp distinction, which we now make between 
executive and judicial power, was applicable to 
colonial times. Such distinctions came only 
slowly into relief. But, however that may be, 
the annulment of legislative acts by an authority 
outside of the legislature must be taken into 



Power to Declare Law Unconstitutional 101, 

consideration if only for the reason that it 
emphasized the absence of legislative omnipo- 
tence and the absence of finality in legislative 
action. Such annulment might be on the 
ground that the legislature had acted unjustly 
or on the ground that it had transcended its 
charter limits or passed an act repugnant to the 
law in England. To this annulment by the 
king in council we must add in our view of 
the background the instances of appeal from 
colonial courts to the king in council; for in 
these cases there was a distinct exercise of 
judicial authority, and in some of them the 
validity of colonial legislation was in dispute. 1 
When the time came to form the Union under 
the Constitution, men placed upon state courts 
the obligation to regard the Constitution as 
law; and it is not at all unlikely that this use 
of the courts to preserve order in the federal 

1 Professor Thayer, for example, in his Legal Essays, appears to 
derive the power of the courts to declare a law unconstitutional 
chiefly from the power of the king in council during colonial times. 

There are some well-known cases of appeal where the validity 
of important colonial laws was brought directly into question, 
notably Winthrop vs. Lechmere, Phillips vs. Savage, Clark vs. 
Tousey. Between 1735 and 1776 there appear to have been fifty- 
nine cases adjudicated by the king in council brought up on 
appeal from Rhode Island alone. For this whole matter see 
H. D. Hazeltine, "Appeals from Colonial Courts to the King in 
Council, with Special Reference to Rhode Island," Am. Hist. 
Assoc. Annual Report, 1894, 299 ff. 



102 The Courts, the Constitution, and Parties 

system — in the federal empire — was an inherit- 
ance from the colonial system in which the 
authority of the British Council was used for 
preserving imperial order. 1 

Probably this historical background — colo- 
nial experience, the nature and the practices of 
the imperial system — had its effect. Much of 
our federal system, much of our general politi- 
cal order, came from colonial history and from 
the workings of the British empire. But while 
this is true, and while from these antecedents 
may have come some of the influences, which 
led to the power of the courts to declare laws 
void, the main line of argument and the main 
ideas on which the courts took their stand 
arose during the course of Revolutionary dis- 
cussion. The ideas were an inheritance from 
England; they were supported by references to 
English judges and to principles of natural 
justice and right; and they were strengthened 
by principles and theories of European pub- 
licists. Without this colonial experience the 
courts might not have come to exercise the 
power we are considering; no one can say; but 

1 This duty and power of the courts took the place of a pro- 
posal in the Convention of 1787 to give Congress the right to 
declare state laws void, and this proposal was plainly borrowed 
from the power of the king in council to annul or veto colonial 
statutes. 



Power to Declare Law Unconstitutional 103 

the conscious line of approach, the conscious 
course of reasoning was on the basis of funda- 
mental law, natural justice, and judicial inde- 
pendence, while the exigencies of Revolutionary 
argument developed and fostered the principles 
in American constitutional law. 

CONTROL OVER EXECUTIVE 

I have left to the end the statement of the 
institutional fact which I barely mentioned 
at the beginning of this paper — the independent 
power of the court to call executive officers 
before them and to hold them responsible for 
their torts. There is no more fundamental 
principle of American constitutional law than 
this. Even if it had no actual or constructive 
connection with the power of the courts to refuse 
to recognize legislative acts as valid, it is a very 
striking illustration of the way in which a 
cardinal principle of law and justice is worked 
into our institutions. There is nothing in the 
verbiage of our early constitutions providing 
for such authority in the courts or for the 
amenability of administrative officers to judi- 
cial authority. It is an emanation from histori- 
cal antecedents and from English law. But 
this responsibility of executive officers is in my 
mind very closely connected with the proposi- 



104 The Courts, the Constitution, and Parties 

tion that legislative bodies are not the final 
and exclusive judges of what their capacity and 
authority are. 1 The power of the court to 
maintain individual right and to preserve con- 
stitutional system by refusing to recognize 
legislative encroachment on individual right 
must, in the abstract, be connected logically 
and (if I may so express myself again) psycho- 
logically with the power of the court, in proper 
cases, to refuse to recognize as valid executive 
construction of executive power and responsi- 
bility; I mean, of course, in cases which involve 
individual right and not involving a political 
question or administrative discretion. And I 
do not mean to imply that the courts can con- 
trol the President himself by directly bringing 
him before the tribunal. 

1 See the reference to the fact in Caton vs. Commonwealth, a 
case quoted ante, p. 42. Anyone solicitous to know how the 
courts have come to exercise this power and announce this 
principle, if he is unwilling to go back of the express conscious 
intention of the framers of the Constitution, will be apt to find 
himself in some trouble and confusion. Whence came the consti- 
tutional principle that a legislature cannot delegate its authority ? 
The constitutions do not say so. Whence comes the principle I 
have just mentioned, the responsibility of administrative officers 
for illegal acts? Whence comes the acceptance and application 
of the whole body of private international law in our interstate 
system ? 



Power to Declare Law Unconstitutional 105 

CONCLUSION 

In seeking for the historical background of 
judicial authority in America I have found it 
necessary to emphasize a series of fundamental 
principles which entered into the warp and 
woof of Revolutionary thinking. As I have 
said more than once, I am not attempting to 
make out that each one of these principles, 
or all of them, demand, by absolute logical 
necessity, the exercise of the power of the courts 
to refuse to be bound by legislative enactment. 
My contention only is that such were the ante- 
cedents and that some of these notions or 
principles were of surpassing influence in the 
minds of the men of Revolutionary days. The 
chiefest among the principles I have given are 
these: first and foremost, the separation of 
powers of government and the independence 
of the judiciary, which led courts to believe that 
they were not bound in their interpretation of 
the constitution by the decisions of a collateral 
branch of the government; second, the preva- 
lent and deeply cherished conviction that 
governments must be checked and limited in 
order that individual liberty might be protected 
and property preserved; third, that there was a 
fundamental law in all free states and that free- 
dom and God-given right depended on the 



106 The Courts, the Constitution, and Parties 

maintenance and preservation of that law, an 
idea of the supremest significance to the men of 
those days; fourth, the firm belief in the exist- 
ence of natural rights superior to all govern- 
mental authority, and in the principles of 
natural justice constituting legal limitations 
upon governmental activity, a notion that was 
widely spread and devoutly believed in by the 
young lawyers and statesmen of the Revolu- 
tionary days who were to become the judges 
of the courts and the lawyers that made the 
arguments; fifth, the belief that, as a principle 
of English law, the courts would consider that 
an act of Parliament contrary to natural justice 
or reason was void and pass it into disuse, a 
belief which was especially confirmed by the 
reference to Coke. Back of all of these ideas 
was a long course of English constitutional 
development in which judges had played a 
significant part in constitutional controversy. 
In English history courts had held an influen- 
tial if not an absolutely independent position; 
Parliament itself had long played the role of a 
tribunal declaring existing law rather than that 
of a legislative body making new law. The 
principle of legislative sovereignty as a posses- 
sion of Parliament was, on the other hand, a 
comparatively modern thing. 






Power to Declare Law Unconstitutional 107 

To one at all familiar with the long course 
of human effort and to the long series of politi- 
cal, theological, and philosophical discussion 
running through centuries of European history, 
the assertion of independent judicial power 
to maintain the fundamental law and to pre- 
serve individual liberty, even against the 
encroachment of legislative bodies, appears to 
be the natural product of the ages, rinding 
place and opportunity for expression in a new 
and free country where people were making 
their institutions — making them, in part, con- 
sciously under the guidance of legal and 
philosophical precept, in part under the influ- 
ence of great social and historical forces. No 
one can understand the rise of judicial authority 
unless he understands the nature and course of 
Revolutionary argument, the American inherit- 
ance of principles of individual right, and the 
seriousness with which men, in the midst of 
political turmoil, went back to fundamental 
principles of political philosophy and strove to 
make them actual. 



II. THE SIGNIFICANCE OF POLITICAL 
PARTIES 



THE SIGNIFICANCE OF POLITICAL 
PARTIES 1 

In some ways what we call the party manage- 
ment, or the machine, appears to have existed 
in America before the party. "This day," 
wrote John Adams in his journal in February, 
1763, "learned that the caucus club meets, at 
certain times, in the garret of Tom Daws, the 
Adjutant of the Boston Regiment. He has a 
large house, and he has a movable partition in 
the garret which he takes down, and the whole 
club meets in one room. There they smoke 
tobacco till you cannot see from one end of the 
garret to the other. There they drink flip, I 
suppose, and there they choose a moderator 
who puts questions to vote regularly; and 
selectmen, assessors, collectors, fire-wards, and 
representatives, are regularly chosen before they 
are chosen in the town." In other words, the 
town-meeting of Boston, with its vaunted free- 
dom of will and frank discussion, only regis- 
tered the decision of an exterior government. 
Sam Adams, attending the caucus, scribbling 
for the newspapers, appealing in shrewd and 

1 This paper appeared in the Atlantic Monthly, February, 1908. 
in 



ii2 The Courts, the Constitution, and Parties 

simple fashion to the artisans and watermen 
of Boston, was the primitive boss who brought 
things to pass. The father of the American 
Revolution was the leader of the machine. 

Although the framers of our federal Constitu- 
tion must have had experience with scheming 
caucuses and with wise political managers, they 
had no conception of parties in any broad sense. 
Of intrigue, of faction, of enmity between rich 
and poor, of tendencies in old-fashioned govern- 
ment, of human ambition, they had knowledge 
in abundance; but of parties organized, offi- 
cered, drilled, manipulated, fitted to work con- 
sistently for power with inconsistent principles, 
they knew next to nothing. This was natural, 
for colonial history had not taught them the 
lesson, though the colonists had had long con- 
troversies and had even made occasional 
combinations. England had not yet achieved 
systematic party government, but was giving 
an example of confusion, out of which in the 
course of the next few years were to arise clear- 
cut party systems and managements. With 
infinite pains the men who framed our Constitu- 
tion laid down ideas of individual freedom ; they 
devised with great cunning a clever system of 
checks and balances in order that the govern- 
ment might do no harm; but they left to hap- 



Significance of Political Parties 113 

hazard arrangements, or to voluntary associa- 
tions unknown to the law and unknown to the 
theory of the state, the difficult task that was 
in itself the great problem of democracy. To 
these associations, which soon arose, was left 
the task of furnishing a medium for transmitting 
the will of the people to the government — this 
balanced mechanism which the Fathers had so 
nicely fashioned. 

Here was the great political and constitu- 
tional problem of the decades to come; and 
clearly enough, if we omit the tremendous 
struggle over slavery and secession, the develop- 
ment of these associations is the greatest fact 
in our constitutional history. Little by little 
these formless voluntary associations were 
hardened into institutions. They were for a 
long time altogether extra-legal; only within 
the last few years have statutes distinctly 
recognized the existence of parties and made 
regulations for nominations, with an acceptance 
of the fact that parties and party mechanism 
are established and have their important func- 
tion in the conduct of the body politic. Until 
about twenty years ago, even ballots were 
printed by the party officials; the candidates 
or the political managers were themselves 
responsible for a large part of the expense of 



ii4 The Courts, the Constitution, and Parties 

conducting an election . The party organization 
was allowed to grow undisturbed, and to develop 
its own capacity for representing or controlling 
the popular will and for controlling the govern- 
ment described on a piece of parchment locked 
in a safe at Washington. 1 These party systems 
themselves came to have constitutions and tens 
of thousands of zealous officials, whose great 
object was, not to transmit the unsullied will of 
the people to the government at Washington, 
but to advance the interests of their own 
organizations. 

No one doubts the importance of the little 
group of party leaders in England who by 
virtue of their inherent capacity rise to the 
head of the loose party organization and in the 
Cabinet determine the policies of the govern- 
ment. No one doubts that the English Cabinet 
is an institution, though it is unknown to the 
law, and though its conferences are as secret 
as those of the Vatican. But we have not seen, 

1 It is an interesting fact that this aspect of our constitutional 
history has received little attention in our histories. A few 
scholarly treatises have covered some portions of the subject. 
The most brilliant of these treatises, and perhaps in some ways 
also the most mistaken, is written by a foreigner, who has the 
perspective of posterity but also its opportunities for error: M. 
Ostrogorski, Democracy and the Organization of Parties. See also 
J. Macy, Party Organization and Machinery; H. J. Ford, Rise and 
Growth of American Politics. 



Significance of Political Parties 115 

or are just beginning to see, in America, that 
the complicated system which manages parties 
and directs government in this country is 
an institution to be taken seriously as an 
established fact, and that the problem of self- 
government now is the problem of controlling 
this institution that manages the government 
which is described by the parchment at Wash- 
ington. Much of the confusion in our discussion 
of political problems, much of the incoherence 
of popular effort, comes from the failure to 
look facts fairly in the face and to watch the 
makeup, the methods, and the purposes of the 
government that has for its purposes the man- 
agement of what we call the government. The 
present task of democracy is not to prevent the 
party management from getting possession of 
the government, but to make that management 
responsive to the will of the people. This task 
is as dignified, as important, and as difficult as 
the old struggles for representative government, 
for a responsible ministry, for, in fact, any of the 
devices and arrangements which were worked 
out in the course of the long effort to reach 
political liberty. England, by the revolutions 
of the seventeenth century, established the 
principles of her constitution; but her great 
victory for real self-government came when the 



n6 The Courts , the Constitution , and Parties 

party machine was fully recognized as legiti- 
mate and was made, in part at least, subservi- 
ent; the great event was this establishment 
of the party management in the Cabinet and 
the fixing of its responsibility. 

In America the situation is confusing because 
we have so many interacting systems and 
because the mechanism of the government that 
is described by the Constitution does not easily 
lend itself to the management of a single party 
organization. If the party machine could boldly 
take possession of the government at Washing- 
ton and manage it in all its ordinary law-making 
operations, carrying out secret determinations 
openly and as of right, then we could see the 
simple fact. But we have clung stupidly to the 
worn-out idea that the president should not be 
a party leader but a representative of the whole 
people, and that his Cabinet is not a party 
council but a meeting of administrators. In 
England the party machine — though the law 
does not see it — is frankly in possession of the 
government. In America the national party 
mechanism is organized outside of the govern- 
ment : its makeup is scarcely known to anyone 
save the professional; we go upon the humorous 
supposition that since the party is made up 
of many people, we really control it. Just at 



Significance of Political Parties 117 

present in national politics the situation is 
comparatively simple. 1 One party controls 
both houses of Congress, though between the 
organization in the Senate, where a small band 
of veterans is in command, and in the House, 
where one dominant figure valiantly and frankly 
leads and directs, there are not infrequent 
differences of opinion. The same party is in 
control of the executive offices, and the Presi- 
dent makes no bones of the fact that he is the 
head of the party in whose principles he believes 
and whose success he thinks helpful to the 
nation. The national committee is under the 
influence of the real head of the party, who is 
also the head of the government. When Mr. 
Roosevelt in 1904 insisted that he must decide 
who should lead the national committee, he 
took a step toward simplification, toward bring- 
ing it about that the party should in consider- 
able measure be organized in the government. 
If now party government and legal government 
could be made one — perhaps forever an impos- 
sible ideal in the complexity of our system — the 
task of realizing democracy would be lightened 
or at least made plain; the task would be to 

1 This was written in 1908, before the Republican party had 
passed through the experiences of insurgency and progressivism. 
The text, however, may well stand as it was written because the 
facts illustrate the principle. 



n8 The Courts, the Constitution, and Parties 

direct and influence the party system that is 
frankly in control of the government, and to 
do this in such a way that the main body of the 
people would actually determine what policies 
should be followed and what men should be put 
into high office. I need not pretend that, even 
under such circumstances, even with this one 
government to be looked after, the task would 
be easy. It is doubtful if even then democracy 
would be realized as an actual form of political 
control; but the work of direction would then 
be made at least comprehensible. 

And yet such a discussion as this is absurdly 
academic and theoretical. We have a complex 
system outside of the government with an 
occasional approach to organization within the 
limits marked out by the Constitution; and the 
task of a democracy that craves realization is 
to manage this superior organization and not 
to let it get entirely away from popular influ- 
ence. Everybody knows dimly that corporate 
wealth in this country is managed by remark- 
ably few men; we have recently been instructed 
with much rhetoric about the "system," and, 
though we may not take all the rhetoric seri- 
ously, we know that what we fear is the domina- 
tion either of organized wealth or of organized 
labor. If the emperors of organized riches 



Significance of Political Parties 119 

could overcome their own internal disorganizing 
individualism and set to work to control the 
government, what would be their method? 
Surely not to send their own lieutenants and 
their trained legions into the offices, or to grasp 
themselves the places of trust — if one dare use 
that good word to describe places of profit; not 
even to seize themselves upon the offices in the 
party management, the pretorian guard, which 
controls the government. In their own way, 
they would from without manage the govern- 
ment which manages the government. 

That this sort of thing has taken place in our 
cities in a more or less disorganized and inco- 
herent way nobody would deny. If the big 
concerns, which wish to rule the cities in behalf 
of their own yawning coffers, were fairly 
organized and not struggling among themselves, 
we should have three governments: first, the 
one described by the charter; second, the one 
represented by the boss and the party machine ; 
third, the one of wealth and lucre. And of these 
the last would be — not to be sure the only 
government reaping profit — but the one whose 
wishes were finally regarded and which could 
transform desires into acts and pelf. Under 
such circumstances, would we still cling to the 
notion that by occasionally casting pieces of 



120 The Courts, the Constitution, and Parties 

white paper into black ballot-boxes we had self- 
government, and would we content ourselves 
with thinking that the government described 
by the charter was our government? Surely 
it is clear that the thing we want to do is to 
control the party government, and not to let it 
fall into the hands of a third combination, for 
whose power, when once it is made complete, 
there is no remedy but revolution. This 
thought, of course, underlies the objection to 
corporate contributions to party committees. 
Our means of controlling and holding in check 
the party management of the national parties 
are so inadequate, that we almost hold our 
breath for fear of the annihilation of popular 
government, when we think how difficult it 
would be for us to prevent government by 
organized wealth if the contest were once on. 

A glance at our history will illustrate the diffi- 
culty of controlling party management and of 
making it really subject to the will of the main 
body of the party. The earliest system of 
presenting candidates for office was through a 
caucus of office-holders. The governors of the 
states were nominated by a caucus of legislators, 
and candidates for the presidency were put 
forward by party caucus in Congress. Those 
persons who, because of social standing or 



Significance of Political Parties 121 

influence, were thought capable of holding 
office, assumed the duty of telling the people 
for whom they might cast their ballots — a 
negation of popular determination. This super- 
imposed system was bound to disappear with 
the rise of democratic sentiment, with the exten- 
sion of self-confidence among the people, and 
with the widening of the suffrage that came as 
the West developed. In the years after the 
war of 181 2, when the masses of the people were 
beginning to feel their power distinctly, changes 
were wrought in the nominating system in the 
states. First came the " mixed convention," 
made up in part of office-holders, who received 
into their number persons who were not office- 
holders; and soon in some of the states the 
"pure convention" was in existence — a body 
of men coming from the various parts of the 
state for the purpose of selecting the candidates 
of their party for state office. This was the 
result of a revolt against the self-assumed 
authority of the office-holders. It was an effort 
to make the government more nearly and 
immediately what it pretended to be, the 
people's own. 

In 1824 the regime of the congressional caucus 
was overthrown. There was then but one 
party, and personal rivalries within it were the 



122 The Courts, the Constitution, and Parties 

order of the day. When therefore a rump 
caucus nominated the palsied Crawford for the 
presidency, this "regular" nomination was 
treated with little respect by the supporters 
of Jackson, Adams, and Clay. This disrespect 
was in part due to the fact that there was only 
one national party, for under such conditions 
the authority of customary mechanism is 
endangered; but to be understood aright the 
situation must be seen in connection with the 
general democratic upheaval which was every- 
where apparent, which marked the new rise 
of popular self-confidence, and which shortly, 
in the advent of the spoils system, heralded an 
effort of the people to make the government 
really their own. The protest against King 
Caucus must be read in the light of the social 
temperament of the day; it ushered in the 
reign of Jacksonian self-satisfied democracy, 
which meant so much in the political, educa- 
tional, and intellectual history of America. 

As no one of the candidates received a major- 
ity of the electoral votes, the election of 1824 
was decided by the House, a fact hard to be 
borne by the protestants against congressional 
nomination. In the next few years the demo- 
cratic protest was variously registered: by the 
total disappearance of the congressional nomi- 



Significance of Political Parties 123 

nation; by the triumphant election of Jackson 
as the man of the people; by the attack on the 
office-holders and the installation of the spoils 
system; and by the holding of national con- 
ventions to present candidates for election. 

Here came, however, one of those recurring 
contradictions which show the difficulty of 
popular government, which apparently prove 
that mechanism is a necessity, and which on 
the other hand indicate clearly that a mechan- 
ism established to register popular desire tends 
irresistibly to control it. It is apparently an 
impossibility to set up a transformer, the pur- 
pose of which is to transmute public wishes into 
governmental action, and to have that device 
work as an inanimate sensitive mechanism. 
The invention is used at once for the old end, 
not to transmit power from the people to the 
government, but as a means of controlling the 
people; the power passes through such a 
mechanism downward to the masses and not 
from them upward to the government. The 
convention system, the result of an insurrection 
against dictation from office-holders, was not 
long a means for expressing popular wishes. 
The party management used it freely and deftly; 
it gave new opportunities for the skill of the 
professional political mechanic. And we are 



124 The Courts j the Constitution, and Parties 

now seeking to get rid of this device originally 
established to give greater scope for popular 
desires; in the various states of the union we 
are now making attempts to establish systems 
of popular nomination, because it is believed 
that we can make the government our own by 
transferring to the people the right to say for 
whom they may cast their ballots. In national 
politics, too, we have come to have little faith 
in the nominating convention, though at times 
it is impressively subservient, in spite of the 
management, to popular demands, expressed 
in all sorts of unmechanical and unsystematic 
ways. 1 

But of greater significance than the conven- 
tion system, which came in Jackson's time as a 
protest against superimposed control and dicta- 
tion from office-holders, was the spoils system. 
This, too, was, in national politics at least, the 
effect of a protest against an office-holding 
regime, the result in some measure of the notion 
that the government was not for any official 
class but for the people. As a matter of fact, 
of course, it did not operate to democratize the 
government; on the contrary it provided a 

x The nomination of Wilson in 1912 was said, for example, 
to have been necessitated by popular sentiment. The nomina- 
tion of Taft has not commonly been so regarded. 



. Significance of Political Parties 125 

means of financing party management; it 
furnished the sinews of war to party govern- 
ment. The men who occupied their time in 
manipulation for the purpose of getting and 
holding office and for managing the government 
were now furnished by the public with the 
funds for political warfare and for carrying out 
their plans of campaign. When once a party 
is fairly organized, with a selected body of lead- 
ers, with lieutenants and subalterns in every 
nook and corner of the land , it needs funds. No 
matter how praiseworthy the party principles, 
continuous activity under expert guidance 
requires funds; and the spoils system was a 
device whereby the great governmental system 
which managed the party was provided with 
funds from the public treasury; for office was 
given by party leaders to pay party debts, and, 
moreover, portions of the official salaries were 
paid over to the party management to finance 
its operations. It is worthy of note, too, that 
under the spoils system persons inducted into 
office because of their activity as party workers 
were expected to serve the party and its organ- 
ized board of direction. When once that idea 
prevails, the real government is obviously the 
party organization; the so-called government 
is the instrument, the conventional grooves 



126 The Courts , the Constitution, and Parties 

through which the system standing without 
expresses its authority. 

There has been a great outcry against the 
spoils system by many who do not appear to 
see the simplicity of the whole matter and its 
pre-eminent rationalness. The establishment 
of so-called popular government brought parties 
— parties with principles and parties with 
hunger. We cannot conceive of the possibility 
of getting on without them; it is easier to 
imagine the demolition of any part of our con- 
stitutional organization, the submersion of a 
large part of what the Constitution describes, 
than to imagine our getting on without political 
combinations; they are our vital institutions, 
they abide in the innermost spirit of the people. 
We cannot live under a scheme in which every- 
one acts as a disassociated atom; organization 
is an absolute necessity, and we may thank our 
stars that our genius for politics, if not for real 
self-government, has brought about the estab- 
lishment of two big parties instead of a crowd 
of factions like those which masquerade as 
parties in continental Europe. Nothing is a 
greater proof of American political capacity 
than this organization of two competing parties 
to manage a government, and that too a govern- 
ment strikingly ill adapted to the party regime. 



Significance of Political Parties 127 

If then we are to have parties and if we really 
desire their presence, if they are an essential 
part of the great task of democracy, how shall 
they be financed? Under the spoils system 
they were financed by the government itself, 
which gave offices and salaries sometimes to in- 
competent persons, and sometimes when there 
were no duties to be performed; for the ques- 
tion was not fitness for the office but capacity 
as partisans. The party machine was furnished 
with fuel and lubricant at public expense. 
Recently it has been proposed that campaign 
expenses should be paid openly from the state 
or national treasury. This would be to do 
only what was done indirectly and amid great 
protestations of patriotism for half a century 
or more under the spoils system and is still 
done to some extent. The spoils system is 
a method of financing political parties, which 
are the inevitable companions of so-called 
popular government. Unless men through 
the country at large are willing to contribute 
openly and for legitimate purposes to the 
party organization, or unless men become 
suddenly so virtuous and altruistic that they 
are ready to do party service at their own 
expense, some legal method of furnishing the 
party organization with funds must be dis- 



128 The Courts, the Constitution, and Parties 

covered. We should have little hesitation in 
preferring the spoils method of financing party 
management to the secret system, whereby 
large corporations with special interests to be 
subserved furnish the funds in exchange for 
favors. Surely the spoils system, if for no other 
reason, because of its flagrant publicity, is 
preferable to the system described by Mr. Piatt 
in his testimony before the insurance investigat- 
ing committee. Of course managers who are 
honest and are not in the pay of the corporations 
do get some recompense personally for arduous 
party service; they get a mild distinction, they 
get a sense of power, they get the fun of the 
game. As good whips in England die in the 
House of Lords, so here a big party leader like 
Mr. Hanna may become a king-maker in the 
Senate. But we are forced also to contemplate 
a leader of a different kind who slips across the 
Atlantic to open a racing stable and shake the 
dust of hurrying America from his feet. What 
shall be the means of financing the party 
machine is without exception the greatest 
question of the hour. Without some proper 
method, honest party government is extremely 
difficult and real democracy a hopeless dream. 
My main theme is the general organization 
of national parties and their influence in our 



Significance of Political Parties 129 

history; but one cannot approach completeness 
in discussing the subject without realizing that 
private autocrats and local rings of the most 
corrupt character have often retained their 
power because of their service to the national 
mechanism. And one must notice too that, in 
the course of time, there came various predatory 
methods, which I have no desire to connect 
intimately with legitimate party machinery. 
The support of these rings by open use of the 
spoils — vulgar, expensive, and dangerous though 
it be — is probably preferable to the systems that 
have been largely followed. The practice of 
direct stealing, whereby Mr. Swartwout, col- 
lector at New York, some seventy years ago 
purloined over a million dollars, has been given 
up as hopelessly banal and crude. The methods 
of the Tweed ring, though partly those of com- 
mon stealing, showed more adroitness and 
originality; they have recently been followed 
in some measure in other states and cities, and 
conspicuously in unimaginative Pennsylvania. 
But the last refinement is to finance the local 
rings and irrigate their systems, by subjecting 
corporations to demands for ransom and by 
leaving the corporations to recoup themselves 
by the use of privileges or by opportunity to 
pile up legitimate wealth without fear of 



130 The Courts, the Constitution, and Parties 

brigandage. At times, on important matters, 
this system has transferred the government 
from the machine to the corporation. The 
licensing of crime by the local ruler who owns 
the government and can issue immunities is 
again an interesting fact in the general history 
of popular government. We shall see all these 
things more clearly, if, amid our denunciation 
of their odious criminality, we see their con- 
nection with the great public duty of furnishing 
funds for the party system. 

There appear at times evidences of an amus- 
ing incapacity to see the actual situation. 
Strong objections, violent protests are made 
because a member of the party organization 
is put into office — because, for example, he is 
given the opportunity of drawing the salary and 
holding the title of postmaster. Let us ask the 
protestants frankly why the political managers 
should be expected to ask the advice of those 
who have done nothing to care for the interests 
of party. So long as we have popular govern- 
ment, we shall have parties; so long as we have 
parties, we shall have party managers; so long 
as we have managers, we must expect them to 
look after their interests and their party's 
nurture. If anyone wishes to stay outside of 
the party lines, let him do so and let him make 



Significance of Political Parties 131 

just as big and violent a protest as he can against 
unfit appointments; by his outcry, he too is 
serving the state; but let him not be amazed 
at the temerity of the party manager charged 
with a public duty — for the management of a 
party can be called nothing less — in putting 
into office a wheel-horse of the party, rather 
than some decorous citizen who leaves to others 
the responsibility for making quasi-popular 
government a possibility. 

I have spoken of the party as if it were bent 
on controlling the government for certain ends, 
and as if for that reason it acquired the offices 
and financed its operation by the spoils system. 
As a matter of fact, principles are often, if not 
commonly, adopted to aid in the acquisition 
of position. While parties have tendencies, 
almost a personality, and are occasionally really 
enthusiastic for principles, the party organiza- 
tion and especially the inner circle of party 
managers have for their end the acquisition 
of control and of office. This cannot all be 
explained on the ground of mere greed for posi- 
tions and salaries, or by any simple and easy 
statement of impulse and motive. The state- 
ment is just as true of the English parties as 
of the American; and in England with a change 
of government — a noteworthy phrase — there 



132 The Courts, the Constitution, and Parties 

is little change among the tenants of the civil 
service. And yet what do we find in England 
time and again, indeed with ludicrous repeti- 
tion ? We find a party looking for a principle. 
We ask ourselves quite seriously what principle 
must be accepted by the Conservatives to get 
into office, or what by the Liberals; we find 
over and over again that the party in power has 
accepted the principles of its opponents and has 
begun to put those ideas into operation, not 
without expressions of indignation from the 
former advocates of the doctrines, who expected 
by these means to get into office themselves. 
Such statements as these appear to be a severe 
condemnation of the whole party regime, and 
by most persons they will not be accepted as 
true. But surely they have much truth in 
them; and our purpose here is not to indict 
parties or to praise them but to consider their 
characters and qualities. What do we mean 
when we say the Democratic party is looking 
for an issue ? We mean at least — do we not ? — 
that the party has a consistency, a being, quite 
removed from any body of doctrine or any hope 
of especial legislation or political accomplish- 
ment. It is easier to trace a party by its 
character than by its principles. 

A political party may be truthfully defined — 
or its content roughly suggested — in some such 



Significance of Political Parties 133 

way as this: it is a body of men, somewhat 
fluctuating in personnel and in numbers, who 
have begun to work together to attain some 
political purpose or to oppose other men to 
whom for some reason they have felt antago- 
nistic. This body, acquiring organization, and 
gradually developing esprit du corps and a sense 
of self, continues in existence even after its first 
purpose is accomplished or abandoned, indeed 
after it has lost a dominating purpose of any 
kind; it accepts new doctrines to wrest office 
from its opponents; its activities rest largely 
on tradition, on party name, on personal pride, 
and sometimes on a dominating principle. We 
should not be far wrong if we should declare 
that there are two or more great armies in 
existence, each controlled by a select few whose 
main ambition is victory, and that objects of 
the people's desire are attained by the organiza- 
tion's accepting a principle as a means of win- 
ning success. This does not mean that party 
leaders have no sincerity. It does mean that 
they have their full share of human nature, and 
that a party government would usually throw 
over a principle which it believed was unpopular 
and likely to bring disaster. If this is not true, 
why condemn Mr. Bryan for adhering to free sil- 
ver when its advocacy had not brought success ? 



134 The Courts, the Constitution, and Parties 

While principles are being hopefully advo- 
cated, most party leaders enthusiastically be- 
lieve in them. This is a beneficent provision of 
Providence; because human nature is thus 
constituted, we get such self-government as we 
do have — a government, organized to get office 
and to manage government, absorbs popular 
principles and fights valiantly for their reali- 
zation. This is also why a party must have 
a principle; for though it may live without a 
principle for years, it loses its usefulness, and 
finds its enlisted men, little by little, deserting. 
The history of the Whig party is thus explained; 
for years largely a party of opposition, living 
for some decades in incoherence and feeding 
on opportunism, it failed at a critical juncture to 
accept principles for which the people were 
beginning to ask organized championship; it 
"swallowed candidates and spat upon the plat- 
form"; it tried to exist by crying out against its 
opponents and by relying too long on the vague 
social and economic sympathies which had been 
its foundation and support. 

We need not believe that a party without 
principles is necessarily unprincipled; it is for 
the moment unfortunate, not vicious — of course 
I am not speaking of any local machine that is 
organized merely for public plunder. We may 
be sure that leaders are anxiously scanning the 



Significance of Political Parties 135 

horizon hoping for a breeze to fill their sails. 
But does not this mean that a party is not a 
body of men united for the purpose of carrying 
out a principle ? Is it not plain that a party is 
a body of men who act together more or less 
coherently under discipline of party govern- 
ment and who accept a principle to win success ? 
I am fully aware of the permanence of the tariff 
issue of the Republican party. No doubt the 
leaders believe in it and perhaps they would not 
throw it aside to win the election; but anyone 
who thinks that the Republican party and the 
Republican organization do not exist outside 
of any principles has not thought very much of 
the significance of political phenomena. Above 
all, we should recognize that men are born into 
parties, and that the system exists as a social 
phenomenon, and that partisan compactness is 
due to the operation of forces in society and in 
human nature far beyond the advisability of 
mere doctrine. 

This coherence of the elements of a party, 
even without reference to principles, has altered 
our constitutional system. We have on the 
face of the Constitution a republic made up 
of republics, each one of which is supposed to 
be interested in its own affairs and to manage 
them as it likes; and with these republics is a 



136 The Courts, the Constitution, and Parties 

central government whose operations are con- 
fined to caring for a limited number of general 
interests. But although the Fathers sought to 
establish a federal state, they did establish 
national parties — a strange contradiction, for 
the tendency of these organizations from that 
day to this has been to transform the federal 
republic into a national republic. From these 
political associations, spreading over the whole 
country, reaching out into the remotest hamlet, 
came the unceasing pressure of the national 
idea. Today the domination of the national 
party is nearly complete; there are no state 
parties which look after state issues and which 
are distinct from the parties and the policies 
that are of continental dimensions. In every 
step taken in ward or township, in every nomi- 
nation made for local office, there is deference 
to the interests of the great national organiza- 
tion; local interests are nearly submerged; they 
are regarded occasionally only as the interests 
of the wider organization allow them to be. 
When this system is complete, it means nothing 
more nor less than the disappearance of local 
self-government; it means a surrender of the 
local will and the local interest to a wider and 
stronger power without. 
The force of parties as a nationalizing agency, 



Significance of Political Parties 137 

and their influence for conservatism, was shown 
with especial clearness in the decade before the 
Civil War. How long the nation was held 
together by the strong ties of party affiliation it 
would be hard to say; how long, in other words, 
the fact of party delayed attempted secession. 
Party allegiance held leaders together, prompted 
them to deprecate sectional strife, and forced 
them to accept principles in which they other- 
wise would not have believed; it was stronger 
in some ways than fealty to the nation itself. 
Nearly every other bond was broken before 
these ties of party allegiance gave way. Even 
the church organization had in considerable 
measure disappeared before the Douglas Demo- 
crats in the Convention of i860 refused to go 
the length demanded by the extreme pro- 
slavery element of the party. As the break-up 
of the Whig party eight years before had given 
the solemn warning, so the cleavage of the 
Democratic party was the end of the Union. 
The simple fact is this : if we look at the party 
as a real institution, as of course it is, we must 
realize that it was almost the last to yield to 
forces of disunion and disorganization; and, 
when it did yield, disunion was a fact. The 
national party proved the presence of national 
sentiment; but when once a party like the 



138 The Courts, the Constitution, and Parties 

Democratic party was fairly organized, it had 
its own consistency, which remained to show 
astonishing powers of cohesion after sectional 
passions were aroused, after the real interests 
of the elements of the party were divergent. 

I have said that under the unceasing pres- 
sure of national parties local self-determination 
has largely disappeared. We have thus become 
in reality, if we are willing to see actualities and 
pass by appearances, a national rather than a 
federal state, because it is the will of the national 
organization which overrules local impulses. 
If we look at the situation a little more closely, 
we shall find that we have become not only a 
national state but a centralized state. It is 
easy, when one is trying to be precise and clear, 
to allow emphasis to become exaggeration, and 
my readers should be warned therefore that 
there are modifications to be made to my 
general assertions; but, when all is said, to 
what a marked extent are local affairs managed, 
without violent dictation, by the central 
authority of the party ! The object of the party 
government is not to seek the will of the 
people and by diligent obedience do what the 
people may wish; it is not, above all, to give 
free play to local whims or fancies. A steady 
gentle pressure is laid upon the remotest school 



Significance of Political Parties 139 

district of the country, in order that in all parts 
of the land the interests of the continental 
system may be first regarded. The central 
organization is busied in quietly and simply 
smoothing away local differences, in ironing out 
difficulties that may set the interests of the 
locality above the success of the whole. Year 
by year, power and authority do not pass up 
along the lines of influence from the road district 
to the committees at Washington; quite the 
reverse. The vastly complicated party mechan- 
ism is not made to obey or to register the behests 
of the people; it strives for uniformity; it seeks 
to put the tariff or free silver above good 
roads or a new schoolhouse or the personnel of 
a candidate for local office, if the contention 
over the new schoolhouse or the local candidate 
endangers partisan homogeneity. 

Again let me say this is not pessimism, or even 
an attack on the party system or the party 
machine. The party system must be main- 
tained and the management is a necessity; but 
the tendency of all organization is toward 
uniformity; organization, whether it be religi- 
ous organization, trade organization, or political 
organization, tends to perpetuate itself, to 
dominate, and above all to be out of patience 
with differences, peculiarities, local or personal 



140 The Courts, the Constitution, and Parties 

idiosyncrasies. And this is so because system 
and individualism, system and local assertion, 
are inherently antagonistic. As well whistle to 
the whirlwind as expect that any organization 
should not respond to the laws of its being. 

The disappearance of federalism under the 
influence of nationalism is most obvious in the 
election of senators. The popular election of 
senators, as provided for by the new amend- 
ment submitted for adoption (191 2), ought to 
be of value in disentangling state from national 
politics and policies; we may at least hope 
that it will in some measure set the state 
governments free and help in re-establishing 
federalism. For the trouble to be remedied 
is not the mere method of election by legis- 
lators, who are supposed to be approachable — to 
employ a euphemism. The trouble, or at 
least the fact, is that the method of electing 
senators has subjected state politics and state 
welfare to the interests of a national party. 
And here again is humorously plain the failure 
of the framers of the Constitution to see into the 
future and to do what they hoped. They con- 
stituted the Senate as it is, for many reasons; 
but the equal representation of the states was 
the result of a demand from the delegations of 
the smaller states, who feared that, unless such 



Significance of Political Parties 141 

representation were allowed, they would be 
overridden by their larger neighbors or entirely 
absorbed by the national system. The Senate, 
it was supposed, would safeguard the interests 
of the states. But the system of election made 
it impossible for the Senate to stand for reten- 
tion of the real autonomy of the states. As 
soon as national parties were fairly organized, 
there was evident necessity of electing state 
legislators on national issues; to preserve the 
interests of the party, every effort had to be 
made to keep the legislature in line. A voter 
must subserve the interests of his national party 
by electing a legislator of that party, because a 
senator's election was at stake; and in conse- 
quence national issues were at once involved in 
every state election, and supremely so when the 
legislature was to elect a senator. The voter, 
filled with enthusiasm for his party, would be 
ready to cast his ballot for a scamp or to neglect 
every measure of local interest in order to save 
the senator ship. 

Thus through the ceaseless influence of con- 
tinental parties, the federal character as dis- 
tinguished from the national character of the 
republic tended to disappear. Time and time 
again a party which had disgraced itself in state 
management, which was under the influence of 



142 The Courts, the Constitution, and Parties 

a corrupt machine, and which was even acting 
in neglect of the most obvious interests of the 
commonwealth, has been retained in power, lest 
its defeat injure the party at large. One can 
understand how the citizens of Pennsylvania, 
out of regard for the tariff, are content with a 
corrupt party management, and even smilingly 
consent to pay for a state house and its furnish- 
ings several millions more than they cost; one 
can understand their placid acceptance of vil- 
lainy when by such acceptance they assure 
a stand-pat policy on the tariff, if that is what 
is most dear to them. But one could not under- 
stand such subjection of common morals and of 
local interests, if there were no intimate con- 
nection between the tariff and the state house, 
and if our political system were so arranged that 
a state, without pressure from a national 
system and a national issue, could look after 
its own housekeeping. The simple, unadorned 
truth is that, because of the stupendous organi- 
zation of national parties in a so-called federal 
republic, federalism in its most desirable aspects 
has largely disappeared, and all local issues are 
so inextricably connected with national politics 
and dominated by national issues that the 
locality can with difficulty freely express itself 
on its own immediate business. 



Significance of Political Parties 143 

Someone will say that the people can avoid 
this subjection of state to national issues, if 
they so desire; that if the people divide on 
national party lines in electing aldermen and 
auditors and constables, it is because they wish 
to do so. That may be true in a sense. The 
people of Russia could throw off the power of 
the czar if they wished to. But my purpose is 
not to argue or to advocate, but to state facts. 
To say that the people can cast aside the 
domination of the national party regime is, 
however, to disregard the control of a powerful 
organization, a part of whose strength comes 
from the very multiplicity of local interests 
and the commonness of the general interests; 
to disregard the influence of prejudice and pride 
and party allegiance; to fail to reckon with the 
imagination to which national party leaders and 
party contests strongly appeal; and, above all, 
not to estimate correctly the force of inertia and 
the sheer difficulty of maintaining state or 
local organizations distinct from the national 
party system; in short, to say that the people 
can if they wish is not to see the difficulty in the 
real affairs of the political world of clinging 
tenaciously to complicated federalism instead 
of yielding to the simplicity of highly organized 
nationalism. 



144 The Courts, the Constitution, and Parties 

The situation in the South whimsically 
illustrates the general condition, because in 
that section forces are working in a direction 
quite opposite to that of which we have just 
spoken. The people of the South are con- 
fronted with a difficult local problem and they 
fear the intrusion of one of the national parties. 
To subserve, therefore, their distinct particular 
desires, they continue to support a national 
party with whose purposes in general they may 
have little or no sympathy; or, to put the case 
more guardedly, such is undoubtedly the course 
of a good many men. Were it not for the 
local issue, the people in Georgia and 
Louisiana would presumably soon be divided 
into hostile companies on questions which 
separate the national organizations — if it can 
be said that national organizations are really 
divided on questions or principles. The people 
of Pennsylvania, believing it for their benefit to 
adhere to the tariff party, subject their local 
politics and internal polity to an organization 
which is a cog — the fly-wheel more properly — 
in the general party mechanism. The people 
of the South, that they may deal with their 
own local difficulties, adhere to a party in 
which many of them at least have no particular 
interest; at all events they work in a party 



Significance of Political Parties 145 

for many of whose tendencies they have no 
absorbing affection. Partly because local con- 
cerns are pre-eminently significant to them, 
dwarfing all matters of contention between 
great organizations, partly because of the 
force of tradition and the bitter deposit of 
memory, they vote solidly with a party with 
whom on the question of tariff, imperialism, 
money, or corporate influence they, or many of 
them, have no essential sympathy. The people 
of Pennsylvania, because of an industrial con- 
dition, and from phlegmatic inertia, subject 
local politics to a corrupt machine. The people 
of the South, that they may manage their own 
poHtics, accept the economic policy of the 
national party. If the Democratic party 
should obtain control of the national govern- 
ment and be in power for a considerable period 
— if I may be allowed a humorous suggestion — 
if it had general national principles of an indus- 
trial significance, and if the Republicans, break- 
ing in on the traditional distrust of the South, 
could obtain a slight footing in that region, 
there would then be continuous pressure from 
the general Democratic organization to induce 
sturdy partisans to forget local issues and 
avoid factional struggles, lest the result of a 
cleavage within the party on some matter of 



146 The Courts, the Constitution, and Parties 

state politics should give standing ground for 
Republican managers. 

Party systems and the natural psychologi- 
cal trend of organization are inevitable. If we 
wish democratic government, we may possibly 
discover some scheme for managing the party 
and for transforming its leaders into servants 
and for retaining their obedience. That was 
what was accomplished through centuries of 
struggle against the kingship and against legal 
government; the government was made consti- 
tutional, and that means that it was controlled 
and checked by a power without. And per- 
haps by the accumulation of devices, in the 
course of time, parties may likewise be made 
responsive and responsible; we may find a new 
system of ministerial responsibility within the 
party. There is evidently an attempt to do 
this or something like it by recent legislation 
which strictly describes local party committees, 
and the time may not be far distant when the 
boss will be recognized as an official. Many 
times the boss, without holding any office, has 
been the real government. What value has 
mere nomenclature under such conditions ? 

There is, however, no chance of the disap- 
pearance of party and of party machinery. 
Can we not hope for a surcease of the outcry 



Significance of Political Parties 147 

against party management as if it were some- 
thing that could be done away with by a fit of 
anger or the sulks ? Every movement to over- 
come it must itself be organized, and, like a 
party made up to champion an idea, may live 
to accept reluctantly new ideas to perpetuate 
itself. At present our self-government depends 
on our ability to control the party management, 
as best we can, and, when it is evil or too 
dominating, to administer defeat. In Russia 
they are said to have despotism tempered by 
assassination. This is the system of govern- 
ment that we have in some of our states. The 
extent of the enlightenment of the despots 
depends on their good nature and the extent 
to which they fear annihilation or temporary 
deposition. In the restraining effect of a 
rebellion lies the value of reform movements, 
the temporary tempests, which are wont to 
elicit laughter from the experienced because in 
the course of a year or two the older organiza- 
tion is once again in the saddle. But let us 
not suppose that rulers laugh at insurrections. 
Fear of defeat will make even the local kinglet, 
safely guarded within his own winter palace, at 
least offer libations to virtue by presenting clean 
candidates for office. Surely, however, in the 
course of time we can do better than this; we 



148 The Courts, the Constitution, and Parties 

ought to be able to work out a scheme of 
internal control that will make insurrections 
needless. Some time we shall democratize and 
constitutionalize parties. 



III. POLITICAL PARTIES AND POPU- 
LAR GOVERNMENT 



POLITICAL PARTIES AND POPULAR 
GOVERNMENT 

Soon after the adjournment of the federal 
Convention someone said to Benjamin Frank- 
lin, "Well, Doctor, have you given us a republic 
or a monarchy ? " Franklin replied, " A repub- 
lic, if you can keep it." The most important 
series of facts in the life of a democratic state is 
the effort to be and remain a democratic state. 
And the most important efforts in the history 
of the United States are those that have been 
put forth to secure or perpetuate actual self- 
government. At the present time we realize 
more fully than ever before the difficulty of 
actually governing ourselves. We appreciate 
how many elements are at work seeking to 
get control of the government in order that they 
may manipulate the government for their own 
purposes, or seeking to establish some kind of 
authority over and above the people, which is 
contradictory to the fundamental principles of 
popular government. If we are to take effect- 
ive part in this continuing struggle for the 
maintenance of republican institutions, it is 
incumbent upon us to study and to under- 
stand the machinery with which we have to 

151 



152 The Courts, the Constitution, and Parties 

work and the methods and principles of govern- 
mental action. 

When the Fathers made our constitutions 
one hundred and twenty-five to one hundred 
and thirty years ago, they established govern- 
ments which were checked and limited. Their 
highest hope was to make a government which 
could do no wrong, under which individual 
liberty would be safe. They prided themselves 
on clever adjustments, on the adroit system of 
checks and balances which would keep each 
part of the government from obtaining undue 
power. They had in mind rather a government 
that could not do things than a government that 
could do things, and naturally there were bound 
to come great readjustments in our governmen- 
tal arrangements when the people demanded a 
government that could act and not simply pre- 
serve the peace in the midst of struggle and 
competition of men. In the forming of these 
institutions, however, they did not take into 
consideration the formation of political parties. 
It is evident they had in mind the possible 
presence of distinct interests, and especially of 
the differences between the poor and the rich. 
But of political parties that were organized to 
acquire office and to manage the government, 
parties that had consistency and elements of 



Parties and Popular Government 153 

permanence, the Fathers can have had no com- 
prehension. And yet the ink on the venerable 
parchments was scarcely dry before political 
parties came into existence and began to take 
form and consistency. These parties were not 
nicely checked and balanced. They had no 
delicate mechanism calculated to make them 
impotent; but, on the contrary, as the years 
went by it was apparent that they had capacity 
for efficient, alert, active action, with skill for 
securing what they desired. 

The men that made our written instruments 
of government in the eighteenth century, who, 
as I have said, were so solicitous for freedom 
and so desirous of restraining government in 
behalf of individual right, made no provision 
for the two tasks which, as we have come to see, 
are the most difficult problems, and probably 
will remain the most difficult problems of the 
democratic state. These two tasks are the 
choice of men for office and the task of convey- 
ing to government the will of the people in 
such a way that the government may be actually 
responsive to the desires of the people. Unless 
the masses of the people of the popular state 
can actually put into office those whom they 
desire to see there and can effectually trans- 
form their own desires into governmental 



154 The Courts, the Constitution, and Parties 

activity and into legislation, they have at the 
best only the outward forms of popular govern- 
ment and not its essential realities. But, as I 
have said, the instruments for accomplishing 
these two great and essential tasks of popular 
government were left by the framers of the 
Constitution and were taken up by voluntary 
associations altogether unknown to the law. 
In the course of time these associations devel- 
oped and themselves hardened into distinct 
institutions of government. They had their 
governments, their history, their traditions, 
their character, their tendencies and inherent 
qualities. They became great competing insti- 
tutions, each striving to get possession of the 
government and to control the government. 
As a consequence, the struggle for the realiza- 
tion of democracy entered upon a new field. 
It became necessary to control these great 
governmental institutions which in their turn 
controlled the government described by the 
piece of parchment which we call the Constitu- 
tion. It sometimes seems as if the whole 
forces of human nature combated the principle 
of mass government. Organizations, such as 
political parties, established with the apparent 
purpose of carrying out principles of democracy 
and of obeying the behest of the people, came 



Parties and Popular Government 155 

within a short time, as I have said, to have 
their own tendencies and to be more regardful 
of their own success and the prolongation of 
their own lives than regardful for the interests 
of the people or desirous of being obedient to 
the wishes of the people. 

The truth is that when once an organization 
is established for the purpose of carrying out a 
new set of principles, a new force appears to 
come into existence — the life force of the organi- 
zation itself, which appears to become a reality 
distinct from the purposes for which it was 
established. Thus the great political parties that 
were established at the end of the eighteenth 
century came in large measure to exist for them- 
selves alone, and in some respects to be more 
vigorous and more thoroughly organized than 
the government; and, consequently, as I have 
said, a new problem came into existence — not 
the problem of controlling the government, but 
the problem of controlling the government 
which controls the government. 

But, in addition, these great institutions — the 
political parties — established governments of 
their own. These governments were supposed 
to be popular governments. I am speaking now 
of the so-called machinery of the party which 
has, of course, gone through many developments 



156 The Courts, the Constitution, and Parties 

and alterations since the earlier days. As soon 
as these governments were in working order 
they began to lose their quality as popular 
governments. In other words, they were not 
obedient to the wishes of the main body of the 
party. On the contrary they were dominant, 
they sought to perpetuate their power and to 
manage the party as they believed it ought to 
be managed. The idea that the government of 
a party is ever mildly subservient to the wishes 
of the main body of the party is one which is 
totally unacclimated in American politics. 
Just as the party itself is eager for its own suc- 
cess and its own perpetuation, so the govern- 
ment of the party is eager for the success of the 
party and for the perpetuation of its own power. 
The establishment of these two institutions, 
if I may venture to call them two, first, the party 
itself and, second, the government of the party, 
as they were developed in the course of Ameri- 
can history, illustrates admirably the contradic- 
tions in the life of the popular state. Both of 
these institutions, if I may call them two, 
became dominant and not obedient. And the 
greatest task of the American people in an 
effort to realize self-government is and has been 
the task of managing these great organizations 
which are not described by constitutions or 



Parties and Popular Government 157 

laws, but which are nevertheless exceedingly 
powerful. They are rooted in the prejudices, 
sympathies, and interests of the people. They 
are vital and real and not artificial. They 
came into existence to satisfy an actual and 
palpable want, and yet over and over again 
their tendency has been not to be subservient, 
not to be really democratic, not to be helpful 
in carrying out the great purposes of self- 
government, but in themselves to constitute 
problems and difficulties in the way of demo- 
cratic realization. 

If you were asked today what are the real 
needs of the American state, what is most 
necessary if democratic government would be 
a reality, if the people would actually govern 
themselves, you would probably not advocate 
any change in our governmental institutions as 
described by our constitutions; you would say 
that the people must hold securely in their own 
hands the reins of party government; they must 
find some measure of determining for them- 
selves who shall represent them; they must 
discover some means of determining for them- 
selves what principles shall be acted upon by 
the government. Thus it is that the prob- 
lem of popular government is reduced to the 
problem of the management of parties and the 



158 The Courts, the Constitution, and Parties 

control of the governments of the parties. The 
simple and unalloyed truth is this: we need to 
discover some means of effectually controlling 
the real government that controls what we call 
the government; and until we can do that we 
cannot feel that we have become a popular 
state. 

In order to understand the party it is neces- 
sary to know of its origin, its character as shown 
by its history, and its qualities as disclosed by 
its actual functions. Probably it will help us 
to know the party as it is if we remember that, 
though a real political institution, it is essen- 
tially modern. We sometimes speak of parties 
in the ancient world or in the Middle Ages, but 
as a matter of fact we have no reason for think- 
ing that the political party, as we know it today, 
is in essentials like the factious combinations 
of early centuries. The old party, which was 
better called a faction than a party, represented 
a distinct class or element in the community; 
it strove for personal or class advantage; it 
struggled to dominate the government and make 
it its own; its opponents were its enemies; its 
success was likely to mean the proscription or 
the banishment of its antagonist. It did not 
have the systematic organization of the modern 
party. It did not have like functions. The 



Parties and Popular Government 159 

old-time party, the faction, was in general immu- 
tably connected with class interest or was rooted 
in some old personal and racial antagonism 
whose bitter hostility was inversely propor- 
tioned to its reasonableness. Even as late as 
Charles II of England, the time from which we 
are accustomed to date the rise of modern 
parties, the differing elements in the state 
were more nearly like the hostile factions of an 
earlier day than like the parties of the present. 
In truth, although parties, like all other insti- 
tutions, have a long historical background, 
they took on their present character only with 
the establishment of popular government. 

So true is this, that it may not unjustly be 
said that they were created by the oppor- 
tunities, the necessities, and the responsibilities 
of modern democracy; and with every advance 
of democracy, with every effort at fuller 
expression of popular will, the party has 
acquired new force. This would seem like a 
hopeless contradiction in light of what I have 
just said concerning the dominating character 
of party and of party government. It may be 
an inexplicable paradox; but it contains the 
truth: the party as distinguished from the 
faction has worthy functions and reaches its 
true stature only when the popular will is 



160 The Courts, the Constitution, and Parties 

recognized as the determining factor in the 
state; but organization, which would be impos- 
sible under any form of superimposed and auto- 
cratic government, tends, as I have already said, 
to perpetuate its own life. It presents a new 
machine to be managed, a new system to be 
controlled. The facts are simply these : demo- 
cratic government, as distinguished from mere 
anarchistic individualism, requires organization; 
and by its essential inherent qualities, organiza- 
tion tends to be self-perpetuating, dominant, 
and autocratic. 

We are led on to face another troublesome 
contradiction when we see that parties come 
into existence to foster and promote principles; 
for this seems hardly to tally with the fact that 
in a truly popular state there is little room for 
vital principles or doctrines sharply dividing the 
people into distinct bodies. The more nearly 
the state becomes thoroughly democratic, the 
less need there would appear to be for parties 
that embody differing principles and tendencies. 
For the popular state possesses unity. You 
cannot imagine a real democracy divided into 
classes, each with its own desires and its own 
esprit du corps; you might have the form of 
democracy, you could hardly have its essence 
and real spirit, in a state composed of castes, 



Parties and Popular Government 161 

cliques, or social factions. In the truly popular 
state there may be, therefore, differences of 
opinion; but these are presumably temporary, 
they are supplanted by new issues with the 
growth of public opinion and with the appre- 
ciation of actual, general, and common interests. 
Such abstract assertions as these may appear 
too vague and philosophical to have bearing 
on practical problems of everyday politics. 
But a moment's consideration will lead one to 
see that they help to explain perplexing condi- 
tions in practical political life. We are today, 
for example, in considerable doubt concerning 
the course and activity of party action. There 
are some differences between the sentiments 
and the tendencies of the extreme right and the 
extreme left; the most conservative of the 
Republicans are not in sympathy — let us state 
the case mildly — with the most radical of the 
Democrats. Other antitheses might be pointed 
out; but the truth is that the great body of 
the people, the masses, are so nearly a unit on 
the essentials of good government and on the 
desirable tendency of legislation, that party 
coherence is in the greatest peril. Were it 
not for the tremendous force of inherited titles 
and prejudices, were it not for the immense 
carrying power of habit, it would be difficult 



1 62 The Courts , fe Constitution, and Parties 

for the two great parties to preserve anything 
like a solid organization; and, as it is, the 
difficulty of pointing to distinguishing policies 
and doctrines taxes the ingenuity of the party 
leader to the utmost. And thus we see that, 
while parties are begotten in a state where the 
desires of the masses are carried into execution, 
parties as carriers of public opinion appear to be 
less helpful as the state becomes more unified 
and more socially democratic. Though we can 
scarcely conceive of a democracy without 
parties, though without them we should scarcely 
know how to move along, the development of 
unified public sentiment diminishes their use- 
fulness, at least, as I have said, as instruments 
for the transmission of a particular body of 
opinion into law. What is the fact today ? We 
rely not on the party principle, manifest, or 
platform, but on the pressure of public opinion. 
We have confidence in the influence of common 
sentiment upon both parties and upon all 
officers. Public opinion, which is so potent, 
ignores mere partisan alignment and uses 
platform pledges chiefly as taunts and goads to 
spur on the men who have made the promises. 
Perhaps I am only saying the same thing in 
another way when I point to the evident fact 
that parties tend to become alike in the popular 



Parties and Popular Government 163 

state. To the extent that they are distinct, the 
state lacks unity in reality or in grasp of its 
essential needs. The old-time faction struggled 
for itself; the modern party must, at least 
ostensibly, struggle for the common good. No 
party which was once seen to have peculiarly 
at heart the interests of one element of the 
community could possibly survive; it would 
not have the temerity to try to live unless, of 
course, there were elements conscious of their 
own peculiar and particular interests. But 
if there were these distinct self-conscious classes, 
there could not be the essential qualities of 
democracy. If the Republican party should 
openly assert that its tariff policy was princi- 
pally for the benefit of the manufacturer or the 
big moneyed interests of the country, it could 
not long survive — unless we have ceased to have 
substantial unity and have ceased to cherish the 
essentials of the popular state. At all events 
we are now so nearly a democracy in spirit that 
we will not tolerate palpable special privilege; 
we have cast that old word privilege, with all 
the ideas connoted by it, into the limbo of the 
unspeakably undesirable. Privilege and the 
spirit of American democracy are still impos- 
sible companions. 
Nothing is more plain to the student of 



164 The Courts, the Constitution, and Parties 

history than the tendency of one party to 
assimilate the principles and the policies of its 
opponent. It is a common saying in England 
that the Conservatives get on by carrying out 
the Radical measures. The cleverness with 
which the Populists' doctrines of a generation 
ago have been taken home by the standard 
parties of the nation is one of the most notice- 
able features of modern political life. I do not 
say that this process of absorbing Populistic 
doctrine has been fully worked out now in the 
great parties of this country; one of them has 
rigid elements born of long power which do not 
easily yield to pressure; but enough has been 
done to illustrate the general principle. The 
party gradually adapts itself to public opinion, 
puts on quite virtuously and without conscious 
hypocrisy the air of supreme originality, and 
rights valiantly for the issues which it at one 
time contemned. That you cannot, therefore, 
distinguish between parties, need not make 
you hopelessly pessimistic; it is the conse- 
quence of vital democratic sentiment; it be- 
tokens the fundamental reality of the popular 
state. 

A consideration of these elementary facts 
helps us to see the folly of so-called minority or 
proportional representation. If there be any- 






Parties and Popular Government 165 

thing out of place in the democratic state it is 
this pretty plan which was supposed to insure 
liberty and make for justice. Once the fondling 
of the closet-philosopher, it has become the pet 
of the crafty politician. If there were distinct 
elements in the state, each having its peculiar 
life and distinct interests, each might, with some 
show of reason, be given representatives to care 
for those interests. Such is the principle in the 
states of Europe that are still divided into 
classes and where there is no general public 
opinion, no common consciousness. But in 
America, as yet — thank fortune — we do not 
need these theoretical schemes which belie the 
very existence of community interest and com- 
mon purpose. The minority, in fact, are always 
represented; for in the democratic state they 
cannot be a distinct class, and the tendency of 
any party is to take up the desires of any con- 
siderable portion of the community, if, by doing 
so, it may gain recruits and not lose adherents 
proportionately. Of course, this is done hesi- 
tatingly and slowly; the party in power espe- 
cially hesitates to burden itself with new re- 
sponsibilities; but each political party looks 
for adherents. One party, moreover, ap- 
proaches as near as possible the outskirts of the 
other in order that it may entice the stragglers. 



1 66 The Courts , the Constitution, and Parties 

The majority party for the time being — watch- 
ful of its own strength — takes up the tenets of 
the minority, those marginal tenets which are 
most easily annexed and those which appear 
most likely to attract recruits. 

In one respect the minority which is benefited 
by an existing regime has more than its pro- 
portional share of power through the operation 
of party necessity. A party responsible for the 
legislation of the government and for its own 
success, hesitates or refuses to pass legislation 
though plainly advantageous to the majority 
if the legislation antagonizes a small minority 
of its adherents. This is very evident in any 
situation like that offered by the tariff or by 
the pension system. 

Despite this tendency of parties to become 
similar in their policies and tenets, it may be 
that they have distinguishing characteristics. 
It may be that from the beginning of our 
government to the present day each of the two 
great parties has had peculiar inherent qualities. 
We might with some confidence attempt to 
distinguish the Conservative and Liberal parties 
of England; for on the whole probably their 
names fairly represent their tendencies. But 
I am not at all sure of the success of such an 
attempt in American political history. Which 






Parties and Popular Government 167 

of the two great parties has been conservative 
and which liberal I will leave you to guess. 
But in any effort of guessing or of estabhshing 
by historical evidence, be assured you will be 
troubled by a maddening tendency of the party 
in power to become conservative and to hold 
the good it has rather than fly to others it 
knows not of. And you will find any party 
out of power a party of malcontents, prepared 
to take up new issues that it may get into office. 
You will find it enlisting in its ranks the un- 
happy, the visionary, and the hopeful. 

This elemental and instinctive tendency of 
parties is of vital interest to you and me as 
students of practical American politics. A 
party in power is strongly tempted to stand pat. 
The more powerful the organization, the less 
easily will it move. This is not because of any 
peculiar perversity of spirit; it is not due to any 
vicious reactionary tendency on the part of 
decrepit leaders. It is first and foremost due 
to the natural inertia of organization. The 
same thing is true of an ecclesiastical or any 
other great social organization. It is due in 
the second place to a feeling of responsibility as 
well as of power. It is due in the third place 
to the fact that the discontented leave the party 
and naturally flock to the party of opposition. 



1 68 The Courts, the Constitution, and Parties 

But there is another element in the case. 
The party in power tends to become regardful 
of vested interests; it tends, if you want me to 
say so, to be mindful of "the interests." Let 
me make it clear why this is so. It is so be- 
cause, as I have said, a party that has the power 
feels the responsibility and dreads innovation. 
But that is not all. The vested interests, the 
money elements, gravitate instinctively into 
the party in power. There is no politics in 
business. This statement is not pessimism nor 
is it true only of 191 2. Study the history of the 
JefTersonian party, of the Jacksonian party, 
of the Republican party, each one of which 
started as a radical party, and you'll find that 
they attracted by their success the elements of 
property and vested interests. 

In all such discussion as this I have no inten- 
tion of aspersing the possessors of money or 
fortune. We all know that there are men of 
fortune who are virtuous and patriotic citizens; 
and we know, too, that there are moneyed 
interests that have helped to debauch legisla- 
tures. I wish here only to point to the fact, 
first that there is probably an instinctive tend- 
ency in possessors of property to support the 
party which in office feels responsibility and has 
power; second, that moneyed interests that 



Parties and Popular Government 169 

peculiarly desire governmental protection or 
governmental favors support the party that 
can give them. I am explaining myself thus 
explicitly because I am quite unwilling that any 
casual expression of mine should be taken to 
include all moneyed interests in one mass as 
if there were no distinction between conscien- 
tious and conscienceless capitalists. 

A cartoon which appeared in a daily paper 
the other day was drawn by a man who was 
conversant either with present politics or with 
American political history or with both. It 
pictured a dapper old dame walking with lively 
and confident step toward the White House; 
the satchel which she carries in her hand is 
marked "Miss Democracy." She has plainly 
seen better days, but she is now hopeful and 
has the springy step of youth. A rotund 
gentlemen in the background, whose ample 
form is intended to represent the big interests, 
is saying, "Nice looking old woman, that. I 
wish I knew her better." I am not sure that 
the well-favored gentleman of property does 
not now know the nice old lady pretty well; 
but if she reaches the White House, I am sure 
he will try to know her better. 

All this simply shows us how difficult it is to 
establish and perpetuate popular government; 



170 The Courts, the Constitution, and Parties 

and how peculiarly difficult it is to maintain a 
government intent on serving the masses and 
sensitive to the needs — the changing and 
developing needs — of the great body of the 
people. 

It is, I believe, a common belief that parties 
exist to carry out and establish principles, and 
that without distinguishing principles they are a 
useless folly. I am not prepared to say that 
a party can long exist without a principle. 
Indeed our history seems to show that a certain 
body of doctrine is needful. But parties can 
and do exist for a considerable time without any 
peculiar doctrines; nothing is much more com- 
mon than to see a party looking for a principle, 
seeking what we call an "issue." Here, there- 
fore, is one great use for the party; out of power 
it looks about for interests and tendencies in 
the body of the people; it is ready to accept 
principles which appear profitable and popular. 
Both parties do this in fact, but the minority 
party is more eager than the one having the 
advantage of office and authority. This is the 
way in which we get such popular government 
as we do get — not, let it be noticed, by the 
formation of a new party to champion a new 
principle or to foster a new interest. Third 
parties are sometimes formed; but they are 



Parties and Popular Government 171 

likely to be quickly absorbed. If the principles 
they present are looked on with favor by a large 
portion of the people, these principles will be 
taken up by one or the other of the older 
parties or proved by a short time to be undesir- 
able. Three or four parties can be maintained 
in the countries of continental Europe. This is 
because of the class system and the rigidity 
of interests and the absence of the conscious 
all-pervading democracy which we know in 
America. 

A party appears to need a principle; but it 
also needs office. For many reasons it is hard 
for a party without office long to maintain 
itself. The whole situation clears itself in our 
mind if we once conceive of a party as a body 
of men seeking to get possession of the govern- 
ment, and accepting principles and making 
fervid protestations of patriotism in order to 
secure office. This again sounds like mere 
carping criticism and fault finding. But as a 
matter of fact, because of the natural tendency 
of parties to grow together in principle and to 
reach out for what the great body of the people 
desires, an election contest often reduces itself 
or is elevated into a claim for office, a claim based 
on character and capacity for effective admin- 
istration. Would we have such a lamentable 



172 The Courts, the Constitution, and Parties 

condition of affairs if it were clearly accepted 
as a fact that the party asks for the suffrages 
of the people only because it asserts that it is 
the more trustworthy and competent? What 
has been the issue between Democrats and Re- 
publicans in sundry campaigns in the last forty 
years? Have not the Republicans asserted 
that they could better be trusted than their 
opponents to administer the government wisely 
and well? Time and again in England the 
question passed on by the electorate has in 
reality been whether to trust this leader or the 
other with the management of the government. 
The statement that parties exist to get office 
will lose some of its apparent cynicism if we 
fairly consider the functions of the party. Until 
very recently, be it remembered, practically all 
of the election machinery was in the hands of 
the political leaders. The machine had a real 
duty and responsibility. Charged with self- 
seeking — and probably justly so charged — the 
party machine or the organization was burdened 
with the duty of conducting the election, getting 
out the vote, distributing literature, providing 
speakers, watching the ballot-box, in short, doing 
the hundred and one things that are necessary 
to enable people to act. Charges of machine 
methods and even of fraud need not blind us 



Parties and Popular Government 173 

to the fact that these men were acting as public 
officials. We forget in looking upon men as 
political leaders that they are because of that 
fact public officials in reality, and it is a sig- 
nificant and far-reaching fact, the influence of 
which we cannot yet see, that the state has by 
recent statutes taken notice of parties and has 
legalized their organization and distinctly 
limited or described the duties of their officers. 

The function then of a political party, a 
function of overwhelming importance, is to 
put men into office and to present their claims 
for administrative trustworthiness. It follows 
from this that the duty of a leader is to win a 
victory. Certain it is that to this end he chiefly 
functions. Granted that the party is a vital 
institution with real functions in the state, it is 
necessary to admit that the party officials are 
doing public service in seeking to attain office. 
This putting of men into office is the primary 
responsibility of efficient democracy. 

If the party leaders find themselves con- 
fronted by an embarrassing dilemma between 
the choice or retention of principle on the one 
hand and the acquisition of office on the other, 
which alternative will they choose ? Again I 
assert that it is not more than a plain recogni- 
tion of the functions of a party in a democratic 



174 The Courts, the Constitution, and Parties 

republic to say that it may be the duty of leaders 
to reject a principle or a policy in order to win 
votes. We might reach this conclusion from 
an understanding of the nature of democratic 
government; it can safely be declared as the 
natural result of the common duties and func- 
tions of the party in ordinary conditions. Not 
long ago one of the leaders of the Republican 
party, we are told on newspaper authority, was 
asked by a body of bankers to support a certain 
measure of banking reform. He is said to have 
replied, "I don't care a copper what you bankers 
want; the people want something else." With 
him the question was not what was the scien- 
tific merit of the proposal. He may have 
thought that as a statesman in a democracy he 
must proclaim the doctrine that what the people 
desire, that they must have, even though it be 
harmful to their best interests. In reality he 
was living up to his instincts and — shall I 
say ? — his duty as a party leader to advocate 
what the people wanted in order that his party 
might be successful at the polls. It was his 
duty to win the election, not to thrust upon the 
people principles which would insure defeat. 
Here, as in all practical human affairs, it is diffi- 
cult to be logical and precise in dealing with a 
matter of morality. It is, one may venture 



Parties and Popular Government 175 

to say, however, not immoral to take principles 
in order to get office; especially would it not 
be so if the function of a party were clearly 
understood by the voters. The social im- 
morality arises from deceit, from dodging of 
honest responsibility, from misrepresentation, 
and from false pretenses. 

Why will a party object when it sees its own 
policies taken up by another party and carried 
forward into laws ? If the party were eager to 
secure the adoption of principles, it ought to 
be delighted to see those principles conquer. 
But the truth is that the duty of leaders is to 
hold office, to maintain the organization, to 
lead it on to new victory. That is why they are 
leaders; that is what they are for; and they do 
not care to see good ammunition fall into the 
hands of their enemies. 

The party has and has had another function 
in America. It has made for administrative 
and legislative unity. It has helped to over- 
come the principles of the separation of the 
powers of government and make a working 
system. It has made both houses of Congress 
a single working body and connected the legis- 
lative with the executive. Without some such 
unification it would have been difficult or im- 
possible to establish responsibility; and without 



176 The Courts, the Constitution, and Parties 

some such co-ordinating and concentrating 
force as that which comes from party conscious- 
ness, it might have proved difficult to manage 
our system at all. The importance of the 
co-ordinating and unifying influence of party, 
in a government like ours, made up of men such 
as our legislative bodies are composed of, can 
hardly be overestimated. Imagine a House 
of Representatives made up of four hundred 
Congressmen, instead of two competing organi- 
zations; and imagine again the complete ab- 
sence of co-ordination and unity of purpose 
between executive and legislative, and you'll 
see something of what party does and has done. 
That this co-ordination might be obtained 
otherwise is not of moment; the fact is, it is 
obtained by party consciousness. 

It is probably safe to say that in America the 
characteristic relationship of parties to govern- 
ment has been this : the party organization has 
existed outside of the government and from its 
exterior position has sought to control the 
government. The party has not been organized 
in the government, as the English party is 
organized within the English government. In 
England there is identity of party leadership 
with governmental responsibility and power. 
Our relationship of government to parties is 






Parties and Popular Government 177 

seen in its simplest form in a state where a party 
boss, holding no public office, possibly not hold- 
ing office even in the machine of the party, is 
nevertheless the "organization," and, as recog- 
nized boss, not only dominates the party but 
issues his decrees to the so-called government. 
This plan works well as long as the governor 
and the legislature are obedient subjects, 
recognizing the authority of the extraneous 
boss. As long as the governor obeys the party 
"organization" and distributes the patronage 
with sufficient liberality to satisfy the office- 
seekers and with sufficient decorum not to 
shock the public, he is an acceptable official. 
But it may be that a governor, with unusual 
courage or with irrepressible individuality, 
thinks that he has something to say; then there 
is likely to be trouble. The governor is at- 
tacked as a no-party man, as an irresponsible 
dictator, as an intruder, as a marplot, as a 
visionary; he is fortunate if he secures by dint 
of inherent power the following of the masses 
of his party. We have become (or had become, 
shall I say?) reconciled to the notion that a 
governor should not make trouble, but should 
decorously follow the behests of a power outside 
the party "organization" — this irresponsible 
power, which carries on its work in secrecy and 



178 The Courts, the Constitution, and Parties 

seclusion. Isn't that a strange sort of a situa- 
tion in a democratic country ? 

Within recent years we have passed into a 
time of strange confusion; we have had 
governors — we have governors — that are not 
content with registering the wills of the extrane- 
ous, irresponsible, self-constituted " organiza- 
tion." When that happens we seem to be 
thrown into a perfect whirlpool of conflicting 
authority; we are tossed about on the waves of 
partisan commotion. The old-time, simple 
course of things, in which legislature and 
governor of the same party, guided by the pres- 
sure of the unseen forces without the govern- 
ment, worked smoothly along together — the 
old-time peace has disappeared and we are 
vexed with the confusion. 

Perhaps the inherent trouble is and has been 
that presidents and governors have insisted on 
considering themselves publicly as leaders of 
the whole people and not as party officials. 
There appeared to be something below their 
dignity, something a bit unworthy, in being 
recognized as the heads of their parties, as the 
persons whose directions were to be followed 
by the underlings and subalterns of the party. 
But another trouble has been that the center 
of the party mechanism has, especially in recent 



Parties and Popular Government 179 

years, been the man who held the purse, who, 
because of his relation with interests desiring 
the passing of legislation or the inhibiting of 
legislative action, was able to pay the expenses 
of running the party machine — and mayhap 
other expenses also. We have become accus- 
tomed to the notion that a man outside of the 
government should from secret sources receive 
contributions — a pleasing euphemism — enab- 
ling him to oil the wheels and furnish the mo- 
tive power of the party mechanism. We have 
been more or less reconciled to the idea that this 
man, styling himself the "organization/' should 
really control the government; but as yet we 
can scarcely endure the sight of a joining of 
this power over the purse and over the lubricant 
with the titulary position of governor or presi- 
dent. If by some device party leadership in the 
states could be disassociated from money or if 
we could provide for the legal, open, public, 
honest receipt and expenditure of money for 
party purposes, there would be less difficulty — 
perhaps there would be no difficulty — in putting 
our party bosses in public office, putting our 
real governors in gubernatorial chairs and 
calling them governors. 

Another reason for the ambiguity and for 
what is at times the perplexing dualism of 



180 The Courts, the Constitution, and Parties 

American government — I mean the dualism 
that results from our having a government that 
controls what we call the government, I mean 
the absence of identity between the government 
of a party and the government that is provided 
by the Constitution — is this : that the executive 
is the executive; in other words the principle 
of separation of the powers has militated against 
the establishment of this identity. The work- 
ing harmony of the executive and legislative 
powers has been more effectually and apparently 
more easily obtained, either by the exercise of a 
pressure from without, or by the more or less 
thorough understanding and close relationship 
between the government of the party and the 
legislature. Now as I have intimated, within 
recent days we find governors that take the 
initiative, and we have presidents also. They 
assert party leadership — not without violent 
protests from party members and party workers, 
who cry out with one accord that the governor 
or president is a meddler or usurper — or, if 
they do not cry out, indulge in mutterings of 
supreme discontent. It is to be noted that 
this position of the so-called usurping governor 
or president, this assumption of leadership, is 
coupled with an effort to control legislation from 
the executive office, with an effort to ignore 



Parties and Popular Government 181 

the walls separating the departments of govern- 
ment. Governors with strong wills, and presi- 
dents, too, have adopted plans of legislative 
achievement. The most noteworthy examples 
are President Taft and Governor Hughes and 
Governor Wilson. One of the most noticeable 
things in modern political life was the statement 
made by Mr. Wilson in 1910 that if chosen 
governor he intended to consider himself the 
boss of the Democratic party in New Jersey. 
Ignoring the old assumption of the isolation of 
the executive, he proceeded after election, be- 
cause he was the head of his party, to exercise 
his authority as head and to use his influence, 
as well as his authority, as governor to shape 
legislation. 

Now it will be seen that such a situation as 
that I have spoken of in New Jersey is a per- 
fectly simple one and perfectly intelligible. 
But we should be sure to notice, first, that it 
runs counter to the practices in this country and 
conflicts with our prejudices against the identity 
of party leadership and titular authority in high 
executive office; second, that a governor may 
be able to maintain himself in that position 
only by virtue of inherent strength of character, 
supported by a realization of a popular demand 
for a particular brand of legislation; third, 



1 82 The Courts, the Constitution, and Parties 

that it will be distinctly difficult to maintain 
that position without control of the money 
bags of the party; fourth, that by placing direct 
legislative responsibility and practically direct 
power of legislative initiative in the administra- 
tion, it in reality alters our form of government 
— points in the direction of the cabinet form of 
government. 

It should be remembered that we have had 
in the past other attempts by executive officers 
to take distinctly the guidance of their parties, 
to shape legislation, and to lead them to victory. 
Cleveland did this with his tariff issue, and I am 
not sure that the results were happy. It is very 
hard to lead a party to water and harder still to 
make it drink; and certain it is that you cannot 
make it drink simply by virtue of getting the 
best of it in argument. If by chance the recal- 
citrant turns out to be either an elephant or a 
donkey, the force of reasoning seems even less 
efficacious than usual. Roosevelt tried to be 
the real leader of his party and of Congress. 
Again, I cannot say the whole thing was a suc- 
cess, either in establishing him as a leader or 
in committing his party to his policies. When 
the smoke of the vessel carrying the irrepressible 
leader away toward the jungles of Africa was 
seen to disappear on the horizon a sigh of 



Parties and Popular Government 183 

genuine relief came from the lips of many a 
politician who prized. his own power and party 
peace. In McKinley's time we had peace, 
partly because we had war, doubtless, and 
partly because the President had no evident 
intention of pressing legislation on the organi- 
zation of his "party or dictating to the king- 
maker from his own state who sat in the 
Senate. 

Under Mr. Taft we appear to be in a hopeless 
state of confusion and uncertainty. For this 
there are doubtless many reasons besides 
certain more or less futile and awkward at- 
tempts at party leadership. When Mr. Taft 
took the presidential chair he was consid- 
ered a regular, he was heralded as a dove of 
peace; he was supposed to bring healing in his 
wings. He was so strong for party solidarity 
that he ignored the insurgent Republicans in the 
distribution of the patronage. Soon, however, 
he developed a legislative policy; he assumed 
also that he was under obligations to carry out 
what he believed to be the pledge of the party 
and what he held to be good party and public 
policy. I need not confide in you that he is 
having trouble. His pet measure was carried 
through Congress by Democratic and insurgent 
votes. All is not quiet on the Potomac. 



184 The Courts, the Constitution, and Parties 

Do not suppose that I am attacking this as- 
sumed power of political and legislative leader- 
ship by the executive of the nation or the 
state. On the contrary, as an American citizen, 
I applaud this effort to establish unity and to 
concentrate responsibility. As a student of 
American politics I simply try without pre- 
judice to discover and state the facts. As a 
student of American political history I cannot 
be confident that this movement is permanent 
or that we shall see in our time the establish- 
ment of initial legislative authority in the 
executive office. But let no one suppose 
that, by decrying the assumption of leadership 
and authority, one is upholding the essence 
of the time-honored distinction between de- 
partments of government and is maintaining 
our free institutions. The executive, be it 
remembered, has at all events, by his power 
to sign or veto a bill, a share in the legislative 
power; and let it be remembered also that 
cohesion, harmony, and even let us say effect- 
iveness in government has in the past been 
obtained by the pressure of party, and often 
by the pressure and authority of an extraneous 
leader who was not given any such authority 
by the electorate. The notion that the funda- 
mentals of our government are shaken when the 



Parties and Popular Government 185 

power passes to the governor or president, to 
the person chosen by the people to exercise au- 
thority, is of course, nonsense; nothing could 
be more absurd than the outcry of the extrane- 
ous boss who is in deadly fear that the execu- 
tive will trespass on legislative independence. 

The tendency of which I have spoken, the 
tendency toward the establishment of strong 
executive leaders who are party leaders, the 
tendency of the head of the government to 
feel direct responsibility for the course of legisla- 
tion and for the securing of needed legislative 
action, may be only a passing phase. But I 
am inclined to think the examples of the present 
are too powerful not to be of lasting moment 
in the shaping of our institutions. 



IV. SOCIAL COMPACT AND CONSTI- 
TUTIONAL CONSTRUCTION 



SOCIAL COMPACT AND CONSTITU- 
TIONAL CONSTRUCTION 

Students of American history or of political 
philosophy need not be told that in the Revo- 
lutionary period men believed that society 
originated in compact. Our forefathers be- 
lieved too that the state was formed on agree- 
ment and that the king was bound to his sub- 
jects by an original contract. To secure the 
rights of life, liberty, and the pursuit of happi- 
ness governments were supposed to have been 
"instituted among men, deriving their just 
powers from the consent of the governed." 
These doctrines were living, actual ideas to the 
men of one hundred and twenty-five years ago. 
They found continual expression in the speeches, 
letters, and public documents of the time. 1 In 
his speech in the "Parson's Cause" Henry 
maintained that government was "a conditional 

1 The following is a typical example of the announcements of 
the theories of the time. "Some citizens used the following 
language: 'If the king violates his faith to, or compact with, any 
one part of his empire, he discharges the subjects of that part, of 
their allegiance to him, dismembers them from his kingdom, and 
reduces them to a state of nature; so that in such case he ceases 

to be their king And the people are at liberty to form 

themselves into an independent state."' — Bradford, History of 
Massachusetts, 333~34 (Boston, 1822). 

189 



190 The Courts, the Constitution, and Parties 

[constitutional] compact composed of mutual 
and dependent covenants, the king stipulating 
protection on the one hand, and the people 
stipulating obedience and support on the other/ ' 
In the famous argument on the writs of assist- 
ance, when, we are told, the child of independ- 
ence was born, James Otis "sported upon the 
subject [of natural rights] with so much wit 
and humor, that he was no less entertaining 
than instructive. " He asserted "that every 
man, merely natural, was an independent 
sovereign, subject to no law, but the law written 
on his heart, and revealed to him by his maker, 
in the constitution of his nature, the inspiration 
of his understanding and his conscience." 

Locke was the philosopher of the American 
Revolution, as he was of the Revolution of 
1688. 1 The deposition of James and the 
principles laid down in defense of the revolt 
against kingly authority undoubtedly made a 
very deep impression on the colonial mind, and 
when irritation waxed strong in America against 
George III, recourse was naturally had to the 

1 There is abundant evidence of the fact that his Treatises 
on Government were read and studied in the Revolutionary period. 
His Human Understanding was used as a text in some of the 
colleges, and though this book does not cover the subject of 
government, the psychology of the work was what I may call the 
compact psychology. 



Constitutional Construction 191 

fundamental doctrines with which history had 
made Englishmen familiar. The revolt was 
justified on the ground that the king had en- 
croached on the natural and reserved rights of 
the colonists, and the final declaration that they 
were "absolved from all allegiance to the British 
crown/' was based on the belief that the king 
had broken his contract. Not only the argu- 
ment, but in some measure the language of 
Locke is used in the Declaration of Inde- 
pendence. 1 

These assertions are not novel and will, I 
think, be readily accepted by any student who 
is acquainted with the material of the Revolu- 
tionary period. It has seemed to me, however, 
that sufficient attention is not commonly paid 
to the influence and bearing of these basic 
principles of political philosophy in the period 
succeeding the Revolution. The foundation 
doctrines everywhere current during the Revo- 
lutionary time were not likely to disappear at 
once, for on them rested the right of rebellion, 
through them came independence, upon them 

1 "But if a long train of abuses, prevarications and artifices, all 
tending the same way, make the design visible to the people/' 
etc. — Locke, op. cit., § 225. 

"But when a long train of abuses and usurpations, pursuing 
invariably the same Object, evinces a design to reduce them under 
absolute Despotism," — Declaration of Independence. 



192 The Courts, the Constitution, and Parties 

was founded national existence. We might be 
willing to assert, without investigation, that the 
ideas which men cherished and the philosophy 
upon which they acted would be sure to affect 
the thoughts and activities of public men dur- 
ing the early constitutional period and for 
many years after the establishment of the 
United States. It is certainly important for 
us to understand the ideas which men held con- 
cerning the nature and origin of the state and 
society, and to know the foundations upon 
which they believed government to rest. In 
the study of any period such knowledge and 
appreciation are needed, but they are absolute 
requisites for the understanding of men's words, 
motives, and acts at a time when governments 
were in process of construction and new states 
were forming. If we are to start historically 
upon the task of constitutional construction, we 
must necessarily begin by seeking to discover 
how men used terms, and we must likewise 
endeavor to appreciate their essential attitude 
of mind toward government and the essential 
nature of their thinking on matters of political 
concern. 

It may be advisable to state with some 
explicitness what may be considered the funda- 
mental notions which were commonly accepted 



Constitutional Construction 193 

when our national and state constitutions 
were established. Most of these are doubtless 
familiar to the reader. I shall not attempt to 
give a consistent philosophy or to set forth the 
ideas in more than general terms. 1 The under- 
lying idea was that men originally existed in a 
state of nature free from restraint. Each man 
was an individual sovereign and possessed of 
all rights, though dependent entirely upon his 
own strength to defend his rights. Society was 
formed by agreement among men, each indi- 
vidual surrendering a portion of his natural 
rights and retaining others which were inviol- 
ably his. Government and political organiza- 
tion also rested upon agreement. Thus through 
the conscious action and consent of individuals, 
permanent institutions were established. Now 
beneath these ideas of political philosophy was 
what I may call the metaphysical notion, that 
unity can be formed by the conscious action of 
so many isolated beings — unity can be formed 
by the separate movement of isolated atoms. 
Akin to this compact idea and necessarily 
bound up with it was the idea that man could 

1 It is difficult, for example, to describe a state of nature with 
exactness, because of different theories and ideas. On the whole 
perhaps it is fair to say that men accepted Hobbes's conception 
of the perfect lawlessness of the state of nature and coupled it with 
Locke's notion of compact and the resulting government. 



194 The Courts, the Constitution, and Parties 

bind himself; obligation grew out of consent, 
and did not necessarily depend on force, 
certainly not on a pre-existing force. Law was 
not necessarily the expression of the will of a 
pre-existing superior directed toward an inferior, 
but rested like everything else on the consent 
or the acquiescence of the individual. Not that 
any individual could at any time cast off his 
obligations and recall his acquiescence; on the 
contrary, real obligations permanent and bind- 
ing came from original agreement. 1 

It will be seen at once that there is something 
very familiar in many of these doctrines, even 
at the present. Some of them have become 
embodied in legal phrases and in political 
catchwords. To discover just how far these 
ideas have been perpetuated in writings on 
municipal law would be an interesting task; 
but my present purpose is to consider only 
constitutional law or rather constitutional 
history and to note the bearing of such theories 
on the general question of the nature of the 
United States and the Constitution. In order 

1 See especially the exceedingly able chapter on "Municipal 
Law" in James Wilson's Lectures on Law, in which in the course of 
fifty pages he attacks Blackstone's definition of law — as a "rule of 
civil conduct prescribed by the supreme power of the state.'' 
"The consequence is," says Wilson, after a long discussion, "that 
if a man cannot bind himself, no human authority can bind 
him." — Works, I, 193 (Andrews' ed.) 






Constitutional Construction 195 

that the influence and meaning of these doc- 
trines may be more fully seen, it may be well 
to phrase the fundamental ideas of modern 
political philosophy. The supposition that 
society originated in compact is now discarded 
and with it the notion that man ever existed 
in a state oi; nature possessed of all rights. 
Society is looked upon as organic, a natural 
thing, and not the result of intellectual agree- 
ment; society is not superimposed on man, but, 
as Aristotle said, man is by nature [originally] 
a political being. Government may indeed be 
said to rest upon the consent of the governed 
considered as a whole, since government in 
America is distinctly the creature and agent 
of the body politic; but man owes obedience 
to the government and to the will of the body 
politic, because he is born into society and the 
state, and is an essential portion of it. The 
state is an organism, a personality, gifted with 
a purpose and a will. Bluntschli has carried 
this so far that he has discovered that while the 
church is feminine the state is masculine; he is 
ready to tell us the gender, possibly the sex, of 
the organism. Law is the expression of the will 
of the body politic, the superior and all-control- 
ling being; law emanates from a being and is 
binding because of the force of the controlling 



196 The Courts j the Constitution , and Parties 

entity behind it. Sovereignty is the ultimate 
will and controlling purpose of the body politic. 
To the compact philosophy, then, may be 
said to belong three ideas which were of influ- 
ence in our constitutional history: (1) The 
state is artificial and founded on agreement; 
(2) Law is not the expression of the will of a 
superior, but obtains its force from consent; a 
man can indissolubly bind himself; (3) Sover- 
eignty is divisible. I know full well that many 
of those who wrote of the compact theory 
believed in the indivisibility of sovereignty. 
Hobbes held that the monarch was possessed 
of all power. And Rousseau — who, however, 
influenced the American idea very little — be- 
lieved in a sort of indivisible sovereignty. 1 
Even Vattel, who was used much more than 
Rousseau by the statesmen of the latter part of 
the last century, seems on the surface of things 
to teach that sovereignty is indivisible; but as 
a matter of fact his reasonings and arguments 
on the general subject under consideration do 
not bear out the idea of the indivisibility of 

1 As the state and society were conceived by our forefathers, 
complete political, absolute and unlimited power inhered neither in 
the state nor in the government. "Locke and our own forefathers 
.... start with certain natural legal rights possessed by the 
citizens as individuals, limit the authority of the sovereign power 
accordingly, and maintain that any attempt on its part to violate 
these rights is unlawful." — Lowell, Essays on Government, 172. 



Constitutional Construction 197 

sovereignty; a consistent part of the compact 
idea of law was that a body of men could sur- 
render a portion of its right of self-control and 
could be bound by its voluntary agreement, 
thus limiting and confining its power of self- 
determination. But if the reader does not 
agree with this statement, this at least he will 
accept, that there is nothing in the character 
or the fundamentals of the compact philosophy 
which makes a division of sovereignty un- 
thinkable; and if he examines the writings 
of our early constitutional period he will find 
the prevalence of the idea that sovereignty 
could be divided. 1 The tenets of the organic 
philosophy are directly opposed to the three 
ideas I have just mentioned: (1) The state is 
natural and original, and a natural thing cannot 

1 1 do not mean to say that no one asserted the indivisibility of 
sovereignty. Perhaps it was clearly stated in the speech of 
Morris in the Philadelphia Convention, Madison Papers, May 30. 
"He contended, that in all communities there must be one supreme 
power, and one only." Wilson in the Pennsylvania Convention 
hinted once at the same idea and there are a few other instances. 

"Though in a constituted commonwealth standing upon its 
own basis and acting according to its own nature — that is, acting 
for the preservation of the community, there can be but one 
supreme power, which is the legislative .... yet the legislative 
being only a fiduciary power to act for certain ends, there remains 
still in the people a supreme power to remove or alter the legisla- 
tive, when they find the legislative act contrary to the trust 
reposed in them." — Locke, Two Treatises on Government, II, 
§ 149. 



198 The Courts, the Constitution, and Parties 

be the result of intellectual agreement; the 
only result of agreement is an agreement, not a 
new unity; (2) Law is the expression of the will 
of a pre-existing superior; (3) Sovereignty, 
which is the will and purpose of a being, is 
necessarily indivisible. Divisibility is simply 
unthinkable. 

When the Constitution of the United States 
was being made, men did not speak or think in 
the terms of the organic philosophy. Some of 
them, it is true, were more or less distinctly 
conscious of the essential oneness of the Ameri- 
can people; some of them believed that the 
states never had been sovereign; some of them, 
seeing the fact of nationality, demanded that 
political organization should be in keeping with 
this fact. But the organic philosophy was 
developed in the next century, 1 and like all 
philosophy it came not from the abstract think- 
ing of the closet-philosopher, but from the 
actual development of society. While philo- 
sophic doctrine may react upon human affairs, 

1 Perhaps I should again, from motives of caution, remind the 
reader that in the text I am speaking in general terms. Burke, for 
example, because of the historical character of his thinking, saw 
that the state and society were products of history and were not 
the creatures of mere momentary planning and consent by puny 
individuals. But the general truth is as stated above. The full 
organic idea could not come before the organic fact of this century, 
nor could the philosophy come before Hegel and Kant. 



Constitutional Construction 199 

human affairs in the progress of history 
beget philosophic doctrine. If I am right 
in the assertion that men thought and spoke 
in terms of the compact philosophy, it follows 
that we must necessarily interpret their con- 
scious acts in the light of that philosophy. 
I do not say that it is entirely un justifiable to 
interpret the period from 1760 to 1790 in 
accordance with the precepts and the principles 
of the organic idea; 1 but I mean simply to 
assert that if we seek to follow out historically 
the interpretation of the Constitution or to 
find out what men thought of it at the beginning, 
we must get into their attitude of mind and 
understand their method of thinking. 

An examination of the writings of the period 
seems to demonstrate that men approached the 
subject in hand — the establishment of a new 
constitution and government — guided by the 
ideas of the compact philosophy and, moreover, 
that they often directly and explicitly likened 
the Constitution of the United States to a new 
original constitutional or social compact. No 

1 Such a treatment as that of Burgess, Political Science and 
Comparative Constitutional Law, I, 98-108, for example, and large 
portions of that of Von Hoist, seem to me entirely justifiable. But 
of course it must be borne in mind that the authors are seeking 
fundamental principles underlying conscious action. I have 
discussed this matter at greater length at the end of this article. 



200 The Courts , the Constitution, and Parties 

one who has studied the primary material will 
be ready to assert that men consistently and 
invariably acted upon a single principle, that 
they were altogether conscious of the nature 
and import of what was being done, and that 
they constantly spoke with logical accuracy of 
the process. Such consistency and philosophic 
knowledge do not appear in the affairs of states- 
men. But as far as one can find a consistent 
principle, it is this, that by compact of the most 
solemn and original kind a new political organi- 
zation and a new indissoluble unit was being 
reared in America. The compact was some- 
times spoken of as a compact between the indi- 
viduals of America in their most original and 
primary character; sometimes it was looked 
on as a compact between groups of individuals, 
each group surrendering a portion of its self- 
control and forming a new order or unity just 
as society itself was constituted. Sometimes 
the idea was not so distinct an application of the 
social compact theory, but was coupled with 
the notion that individuals and groups of 
individuals could enter into binding and indis- 
soluble relationships by agreement, acquies- 
cence, and consent. A few of the more patent 
illustrations will help in sustaining the position 
here taken. 



Constitutional Construction 201 

Pelatiah Webster, to whom Madison gives the 
credit of being one of the very earliest to pro- 
pose a general convention, 1 issued a pamphlet 2 in 
1783 in which the general idea is clearly put 
forth: "A number of sovereign states uniting 
into one commonwealth, and appointing a 
supreme power to manage the affairs of the 
union, do necessarily and unavoidably part 
with and transfer over to such supreme power, 
so much of their own sovereignty, as is neces- 
sary to render the ends of the union effectual, 
otherwise their confederation will be an union 
without bands of union, like a cask without 
hoops, that may and probably will fall to 
pieces as soon as it is put to any exercise which 
requires strength. In like manner, every mem- 
ber of civil society parts with many of his 
natural rights, that he may enjoy the rest in 
greater security under the protection of 
society." 

The debates in the Philadelphia Convention 
contain references to the exact thought so 
plainly presented by Webster, and give other 
evidence of the character of the philosophy 

1 Madison Papers, Introduction. 

2 A Dissertation on the Political Union and Constitution of the 
United States. I take my quotation from American History 
Leaflets, No. 28, p. 7. The italics of the original are omitted. 



202 The Courts, the Constitution, and Parties 

within which men were thinking. James Wil- 
son saw as clearly as anyone the necessity of 
bringing the new government directly into 
contact with citizens, and he saw, too, that 
there must be expression for the national life; 
but he could not say that the American people, 
already a unit, fused by facts into one body 
politic, were using this convention as a means 
of registering their sovereign will in a constitu- 
tion which would be law and binding on all 
parts of the body politic. 1 On the other hand 
he spoke in terms of the compact philosophy: 
"Abuses of the power over the individual per- 
sons may happen, as well as over the individual 
states. Federal liberty is to the states what 
civil liberty is to private individuals; and states 
are not more unwilling to purchase it, by the 
necessary concession of their political sover- 
eignty, than the savage is to purchase civil 
liberty by the surrender of the personal sover- 
eignty which he enjoys in a state of nature." 2 

^ee A. C. McLaughlin, "James Wilson in the Philadelphia 
Convention," Political Science Quarterly, XII, 18, 19. 

2 Madison Papers, II, 824, June 8. Hamilton said that "men 
are naturally equal, and societies or states when fully independent 
are also equal. It is as reasonable, and may be as expedient, that 
states should form Leagues or compacts, and lessen or part with 
their natural Equality, as that men should form a social compact 
and in doing so surrender the natural Equality of men." — King's 
Minutes, King's Life and Correspondence, I, 610. 



Constitutional Construction 203 

"We have been told that each state being 
sovereign all are equal. So each man is natu- 
rally a sovereign over himself, and all men are 
therefore naturally equal. Can he retain this 
equality when he becomes a member of civil 
government? He cannot. As little can a 
sovereign state, when it becomes a member of 
a federal government." 1 

Perhaps the clearest evidence that men were 
thinking in terms of the compact philosophy 
is contained in the discussion over the question 
as to whether the Articles of Confederation 
were still binding. In regard to this matter 
there were naturally different views. All had 
had experience with treaties between sovereign 
powers; and Madison contended that under 
such a contract as the Articles of Confederation 
a breach by one of the parties absolved all. 
Other speakers, considering the articles as 
something more than a mere treaty or a naked 
agreement between independent states, and 

1 Madison Papers, II, 835. Madison declared that the fallacy 
of the reasoning drawn from the equality of sovereign states, in 
the formation of compacts, lay in confounding "mere treaties 
.... with a compact by which an authority was created paramount 
to the parties and making laws for the government of them." — Ibid., 
978. The italics are my own. Here we have the compact 
philosophy in its pure state: agreement founding an authority 
superior to the creator of that authority. See remarks of Sher- 
man, ibid., 983. Notice also ibid., 1183. 



204 The Courts, the Constitution, and Parties 

being governed in their thinking in some 
measure by the compact philosophy, denied 
that a breach threw the members at once into a 
state of nature toward one another. "If we 
consider the Federal Union/' said Madison, "as 
analogous, not to the social compacts among 
individual men, but to the Conventions among 
individual States, What is the doctrine resulting 
from these Conventions? Clearly, according 
to the expositors of the law of nations, that a 
breach of any one article by one party, leaves 
all other parties at liberty to consider the whole 
convention as dissolved, unless they choose 
rather to compel the delinquent party to repair 
the breach." 1 On the other hand Wilson 
"could not admit the doctrine that when the 
colonies became independent of Great Britain 
they became independent also of each other." 2 
Hamilton agreed with Wilson, and, denying 
that the states "were thrown into a state of 
nature," denied also of course that the Con- 
federacy could be dissolved by a single infrac- 
tion of the articles; 3 in other words, the Articles 
of Confederation were articles of union drawn 
up by communities which were already bound 
together in a social relationship. Luther 

1 Madison Papers, II, 895. 

3 Ibid., 907. 3 Ibid., 907. 



Constitutional Construction 205 

Martin vehemently contended that under the 
Articles the states "like individuals were in a 
state of nature equally sovereign and free," 
and that although they might give up their 
sovereignty they had not done so and ought not 
to do so. "In order to prove that individuals 
in a state of nature are equally free and inde- 
pendent, he read passages from Locke, Vattel, 
Lord Somers, Priestley. To prove that the 
case is the same with states till they surrender 
their equal sovereignty, he read other passages 
in Locke and Vattel and also in Rutherford, 
that the states, being equal, cannot treat or con- 
federate so as to give up an equality of votes, 
without giving up their liberty." 1 Martin 
also declared that "to resort to the citizens at 
large for their sanction to a new government, 
will be throwing them back into a state of 
nature; that the dissolution of the State 
Governments is involved in the nature of the 
process; that the people have no right to do 
this, without the consent of those to whom 
they have delegated their power for State 
purposes." 2 
In this speech, which was one of the longest 

1 Ibid., 975. It ought to be apparent that to men who thought 
in this way "accession" did not necessarily imply the correlative 
right of secession. 

2 Ibid. 



206 The Courts, the Constitution, and Parties 

and ablest of the Convention, 1 Martin adhered 
with remarkable accuracy to the compact 
theory of the organization of the state and 
government. So important is this that I ven- 
ture to rearrange the material just given and 
summarize the conclusions. While Hamilton 
and Wilson, as we have seen, held that the 
people of America were already united in a sort 
of social compact — or, at least, that the 
Declaration of Independence did not throw the 
states into a state of nature in their relations; 
and while Madison contented himself with 
asserting that the Articles were similar to a 
convention among independent states, Martin 
disclosed the full meaning of what was con- 
templated from the viewpoint of the social- 
compact theory. Concluding that the states 
were now equal as individuals in a state of 
nature, and that to give unequal voting power 
in Congress would be destructive of that equal- 
ity, and hence of the existing liberty, he also 
pointed out that to recur not to the state 
governments but to the people for the adoption 
of the Constitution and the establishment of the 
national government would mean that all 
people would be thrown into a state of nature; 

1 The first portion of it, lasting for three hours, is compressed 
into two pages of Madison's Minutes. 






Constitutional Construction 207 

each person was now in society and had a 
government to which he was bound by consti- 
tutional compact, and, if he established a new 
government over himself, he took away from 
the state government and redistributed political 
authority. This he had no right to do without 
the consent of the state government. 

One more quotation in this connection will be 
sufficient indication that the idea of the social 
compact was influencing the minds of the 
framers of the Constitution in the formation 
of the new government and the foundation of 
the new republic. When the Constitution was 
finally drawn up it was presented to the Con- 
gress of the Confederation, accompanied by a 
letter prepared by the Convention and signed 
by Washington. This letter declared that the 
framers had continually in mind the consolida- 
tion of the Union; but the framers evidently 
thought that consolidation could arise out of 
agreement: "It is obviously impracticable in 
the federal government of these states, to secure 
all rights of independent sovereignty to each, 
and yet provide for the interest and safety of 
all. Individuals entering into society must 
give up a share of liberty to secure the rest." 1 

In looking over the debates in the state 

1 Elliot's Debates, I, 305. 



208 The Courts, the Constitution, and Parties 

conventions and the pamphlets and essays writ- 
ten on the question of adoption, we find further 
evidence of the presence of the social-compact 
theory and of the compact philosophy. Wilson 
said in the Pennsylvania Convention: "When 
a single government is instituted, the individuals 
of which it is composed surrender to it a part 
of their natural independence, which they 
enjoyed before as men. When a confederate 
republic is instituted, the communities in which 
it is composed surrender to it a part of their 
political independence which they formerly 
enjoyed as states." 1 Exactly the same sort of 
statement was made and the same illustration 
used by a number of other men. Dickinson, 
for example, said, "As in forming a political 
society, each individual contributes some of 
his rights, in order that he may, from a common 
stock of rights, derive greater benefits than he 
could from merely his own; so, in forming a 
confederation, each political society should 
contribute such a share of their rights, as will, 
from a common stock of these rights, produce the 
largest quantity of benefits for them." 2 Mr. 

1 Elliot, II, 429. McMaster and Stone, Pennsylvania and the 
Federal Constitution, 227. Wilson's Works, I, 539 (Andrews' ed.). 

2 Letters by John Dickinson, in The Federalist and Other Con- 
stitutional Papers, edited by Scott, 789. See also same argument 
in letter signed "Farmer" in McMaster and Stone, 533. In spite 
of the fact that in this latter essay sovereignty is said to consist 



Constitutional Construction 209 

Hartley in the Pennsylvania Convention said: 
"That the rights now possessed by the States 
will in some degree be abridged by the adoption 
of the proposed system, has never been denied; 
but it is only in that degree which is necessary 
and proper to promote the great purposes of 
the Union. A portion of our natural rights are 
given up in order to constitute society; and as 
it is here, a portion of the rights belonging to the 
states individually is resigned in order to con- 
stitute an efficient confederation." 1 Mr. Barn- 
well of South Carolina "adverted to the parts 
of the Constitution which more immediately 
affected" his state. He declared that "in the 
compacts which unite men into society, it 
always is necessary to give up a part of our 

natural rights to secure the remainder 

Let us, then, apply this to the United States." 2 
David Ramsay in an Address to the Freemen of 

in the "understanding and will of political society," sovereignty 
is evidently considered divisible and to be divided in the new order 
proposed by the Constitution {ibid., 534, 539). See also, for the 
same argument, Letters of Fabius (John Dickinson) in Ford's 
Pamphlets on the Constitution, 176. 

1 McMaster and Stone, 292. The reference in this speech to 
the union of England and Scotland is significant. Mr. Findlay 
in objection to the Constitution said. "In the preamble it is said, 
We the People and not We the States, which therefore is a compact 
between individuals entering into society, ajad not between 
separate states enjoying independent power, and delegating a 
portion of that power for their common benefit." — Ibid., 301. 

2 Elliot, IV, 295. 



210 The Courts, the Constitution, and Parties 

South Carolina uses the same expressions: "In 
a state of nature, each man is free, and may do 
what he pleases; but in society every individual 
must sacrifice a part of his natural rights. 
.... When thirteen persons constitute a 
family, each should forego everything that is 
injurious to the other twelve. When several 
families constitute a parish, or county, each 
may adopt what regulations it pleases with 
regard to its domestic affairs, but must be 
abridged of that liberty in other cases, where the 

good of the whole is concerned When 

several states combine in one government, the 
same principles must be observed." 1 

The Massachusetts Convention furnishes us 
with some interesting material. Ames seems 
to have spoken in very modern language and 
to have discarded in some measure the idea of 
compact; he rejected at least some portions of 
the ordinary conclusions springing from the 
compact theory. "I know, sir, that the people 
talk about the liberty of nature, and assert that 
we divest ourselves of a portion of it when we 
enter society. This is a declamation against 
matter of fact. We cannot live without 
society The liberty of one depends not 

1 Ford's Pamphlets on the Constitution, 373. Notice also the 
exceedingly able characterization of the Constitution by Noah 
Webster (ibid., 29, 45, 55). 



Constitutional Construction 211 

so much on the removal of all restraint from 
him as on the due restraint upon the liberty of 
others. Without such restraint there can be no 
liberty." 1 Rufus King, however, expressed his 
opinion that the American people were the first 
to obtain a full and fair representation in mak- 
ing the laws through the social compact. 2 
Bowdoin referred to the same clause in Montes- 
quieu to which Wilson made reference in his 
well-known speech in the Pennsylvania Con- 
vention, and, relying upon the analogy of the 
social compact, said "to balance the powers of 
all the states, by each giving up a portion of its 
sovereignty, and thereby better to secure the 
remainder of it, are among the main objects of a 
confederacy" (a Confederate Republic). 3 It 
is certainly significant that, when the Massa- 
chusetts Convention finally adopted the Con- 
stitution, it gave consent in the following words : 
"Acknowledging, with grateful hearts, the 
goodness of the Supreme Ruler of the universe 
in affording the people of the United States in 

1 Elliot, II, 9. This idea of liberty is not new or essentially 
modern, however. Cicero said, "Lex fundamentum est libertatis 
qua fruimur. Legum omnes servi sumus, ut liberi esse possimus." 
Said Thomas Hooker, "It is the honor and conquest of a man 
truly wise to be conquered by the truth; and he hath attained the 
greatest liberty that suffers himself to be led captive thereby," — 
The Way of the Churches of New England. 

2 Elliot, II, 19. ilbid., 1 29. 



212 The Courts , the Constitution, and Parties 

the course of His providence an opportunity, 
deliberately and peaceably, without fraud or 
surprise, of entering into an explicit and solemn 
compact with each other, by assenting to and 
ratifying a new constitution." 1 New Hamp- 
shire seems to have used the same words in the 
resolution of ratification. 2 

In Hamilton's writings are found many refer- 
ences to the social compact. It is quite evident 
that he had in mind as a working hypothesis the 
artificial construction of society and the body 
politic; and in speaking of the new federal 
Constitution he, like the others, compared it to 
an original compact formed by individuals. 3 
In the Federalist he made use of the following 
language: "But it is said, that the laws of the 
Union are to be the supreme law of the land. 
What inference can be drawn from this, or 
what would they amount to, if they were not 
to be supreme ? It is evident they would 
amount to nothing. A law, by the very mean- 
ing of the term, includes supremacy. It is a 

1 Elliot, II, 176. It is worth remembering in this connection 
that Massachusetts called her own constitution a compact. 

2 Walker, History of the New Hampshire Convention, 46. 

3 Works, II, 322. See also ibid., 320, 376; VII, 294, 334, 336. 
As may be seen later in my presentation of this subject, the 
important fact is not so much that men thought the Constitution a 
social compact as that they thought of society and the state in 
general as artificial and based on intellectual consent. 



Constitutional Construction 213 

rule which those to whom it is prescribed are 
bound to observe. This results from every 
political association. If individuals enter into 
a state of society, the laws of that society must 
be the supreme regulator of their conduct. If 
a number of political societies enter into a larger 
political society, the laws which the latter may 
enact, pursuant to the powers intrusted to it 
by its constitution, must necessarily be supreme 
over those societies, and the individuals of 
whom they are composed. It would otherwise 
be a mere treaty, dependent on the good faith 
of the parties, and not a government; which 
is only another word for political power and 
supremacy y x 

There are certain remarks of Wilson in the 
Pennsylvania Convention which seem at first 
sight to deny the compact origin of the Consti- 
tution altogether. But it seems to me that he 
intended to assert that the Philadelphia Con- 
vention was not contracting or forming a 
contract; that the new order was to spring from 
the people, not from delegates from the states 
at Philadelphia; and especially that in America 
there is no inviolable contract between govern- 
ment and society. He came very near to the 

1 Federalist, No. XXXIII. The italics ■ are in the original. 
See also No. XXII. 



214 The Courts, the Constitution, and Parties 

conception of the people of the United States 
as one body politic, as a single creating unit 
establishing the Constitution. Indeed, that 
may possibly be the idea he had in mind. But 
it seems more likely that he was thinking of the 
people of each state as the real establishing 
authority and of the relationship that was to 
exist between the government of the United 
States and the people: "I have already shown 
that this system is not a compact or contract; 
the system itself tells you what it is; it is an 
ordinance and establishment of the people. 1 
. . . . If we go a little further on this subject, I 
think we see that the doctrine of original com- 
pact cannot be supported consistently with the 
best principles of government. If we admit it, 
we exclude the idea of amendment because a 
contract once entered into between the governor 
and governed becomes obligatory and cannot 
be altered but by the mutual consent of both 
parties." 2 

It should be observed that the notion of a 
binding contract or compact between govern- 
ment and governed, which is here rejected by 
Wilson, was in very evident conflict with Ameri- 

1 McMaster and Stone, 385. This speech is quoted by Ban- 
croft to prove, apparently, that the Constitution was not con- 
sidered a mere treaty between independent states. 

2 Ibid., 384-85. 






Constitutional Construction 215 

can conditions. It could not well be supposed 
that any government was possessed of sover- 
eignty or that a constitution formed an in- 
violable and unalterable contract between a 
sovereign government and its subjects. And 
yet there was some difficulty in breaking away 
even from that portion of the old contract 
notion. Rousseau of course altogether rejected 
the notion of a contract between the sovereign 
people and the government, and the French 
idea was in this respect much more in harmony 
with later American conditions than was the 
idea of the Revolution of 1688, although the 
American Revolution was fought out on the 
principle of the English Revolution and in 
recognition of the idea of a contract between 
king and people. But in spite of its seeming 
inapplicability to American institutions, the 
notion was too firmly rooted not to retain its 
hold long after the adoption of the Constitution. 
It appears in arguments and discussions as to 
the nature of the United States and the char- 
acter and authority of the central government. 
Jefferson declared in the Kentucky Resolutions 
that the Constitution was a compact between 
states and that each state was an " integral 
party, its co-states forming, as to itself, the 
other party." But before the paragraph is 



216 The Courts, the Constitution, and Parties 

finished he seems to argue that a contract 
exists also between the states and the govern- 
ment. As is well known, Hayne in his speech 
on the Foote resolutions spoke as if the states 
were one party to a compact and the United 
States government the other. 1 

These quotations and references may be 
sufficient to indicate that men were thinking 
of the possibility of estabh'shing a new political 
organization and a new government by agree- 
ment and consent. It is clear that something 
different from a mere convention between 
sovereign and independent states was con- 
templated. Thinking as they did in the terms 
and under the limitations of the compact theory 
and the compact philosophy, they did not speak 
of the new state as "original" or "organic" or 
"natural," or declare that a binding law must 

1 "A State is brought into collision with the United States, in 
relation to the exercise of unconstitutional powers; who is to 
decide between them ? Sir, it is the common case of difference of 
opinion between sovereigns as to the true construction of a com- 
pact.'' — Hayne's Reply to Webster, January 27, 1830. 

"The common notion," says Madison, "previous to our 
Revolution had been that the governmental compact was between 
the governors and the governed, the former stipulating protection, 
the latter allegiance. So familiar was this view of the subject 
that it slipped into the speech of Mr. Hayne on Foote's Resolu- 
tion and produced the prostrating reply from Mr. Webster." — 
Madison's Writings, IV, 296. See the correspondence of Gover- 
nor Troup of Georgia with President John Quincy Adams. 



Constitutional Construction 217 

rest upon the force or will of an organism exist- 
ing before the law was issued. On the contrary, 
all states were artificial not natural, super- 
imposed not original; society itself was not 
natural or original but formed artificially, in 
time, by the conscious intellectual consent of its 
framers. Inasmuch as government, political 
organization, and unity can rest on consent, can 
be based on the action of thirteen bodies acting 
in isolation, all that was necessary was to obtain 
the separate consent of the people of the thirteen 
states. 1 

1 No one will seriously maintain that Marshall believed that 
the United States was only a confederation of sovereign states. 
But did he believe that it was necessary that the American people 
should exist as a body politic before the Constitution was adopted 
in order that the Constitution might be a real constitution and 
the United States an actual unity? "They [the people] acted 
upon it, in the only manner in which they can act safely, effect- 
ively, and wisely on such a subject, by assembling in convention. 
It is true, they assembled in their several states — and where else 
should they have assembled? No political dreamer was ever 
wild enough to think of breaking down the lines which separate 
states, and of compounding the people into one common mass. 
Of consequence, when they act, they act in their states. But 
the measures they adopt do not, on that account, cease to be the 
measures of the people themselves, or become the measures of state 
government." — McCulloch vs. Maryland, 4 Wheaton 316. It is 
quite possible that Marshall believed that although the people 
were geographically separated they were acting as a single body 
politic which was laying down its will in a supreme law. But it 
is also possible that he thought of a supreme law resulting from the 
action of thirteen bodies of people, a law which when adopted 
was to be the supreme law of the land. 



218 The Courts, the Constitution, and Parties 

Those who likened the Constitution to a 
social compact seem to have had two ideas 
somewhat different in character. Some of 
them had in mind the combination of each 
person with every other in the establishment of 
a new society and body politic; others thought 
of thirteen bodies of individuals each yielding 
up a portion of its self-control and thus forming 
a new unity as men do when organizing a simple 
state or society. Most of the quotations pre- 
viously given disclose the latter idea. That 
bodies or groups of men were thus by agreement 
forming the United States was the thought of 
Wilson and Hamilton and Dickinson. But 
Luther Martin, who reasoned on the basis of 
the compact theory with inexorable logic, 
insisted that the individual men were com- 
pacting together: "It is, in its very introduc- 
tion, declared to be a compact between the 
people of the United States as individuals; and 
it is to be ratified by the people at large, in their 
capacity as individuals; all which, it was said, 
would be quite right and proper, if there were 
no state governments, if all the people of this 
continent were in a state of nature, and we were 
forming one national government for them as 
individuals; and is nearly the same as was done 
in most of the states, when they formed their 



Constitutional Construction 219 

governments over the people who composed 
them." 1 

It is an interesting fact that these two 
differing views of the way in which the Con- 
stitution was established have survived, al- 
though writers do not use the words " compact " 
or "state of nature," or "sovereignty of the 
individual man," or like expressions. Some- 
times we hear it said that the states entered into 
the Union each giving up a portion of its 
sovereignty. This is the idea of Wilson, the 
idea that bodies or groups of men by compact 
created "a new one." 2 Sometimes it is said 
that the people established the Constitution; 
but the thought seems to be, not that the 
people as a single body politic was acting, but 
that each individual contracted with others in 
establishing a new political organization and 

1 Luther Martin's Letter. Elliot, I, 360. The convention 
of Massachusetts had the same idea, if we judge by the words of 
ratification. 

2 "When a single government is instituted, the individuals 
of which it is composed surrender to it a part of their natural 
independence which they enjoyed before as men. When a con- 
federate republic is instituted, the communities of which it is 
composed surrender to it a part of their political independence, 
which they formerly enjoyed as states." — Elliot, II, 429; 
McMaster and Stone, 227. It does not seem, however, that 
Wilson was always consistent in his advocacy of this idea. See 
his opinion in the case of Chisholm vs. Georgia, quoted later. 



220 The Courts, the Constitution, 'and Parties 

recognizing a new government. 1 This is the 
idea of Luther Martin. 

The first important constitutional case befor e 
the Supreme Court turned in large measure on 
the nature of the Union. The opinions of 
Wilson and Jay are significant, and it may 
indeed be said that Jay's opinion furnished the 
basis on which the judicial interpretation of the 
Constitution has in large measure rested. Wil- 
son declared that there was only one place where 
the word sovereign might have been used with 
propriety; the people " might have announced 
themselves 'sovereign 1 people of the United 
States" And yet he goes on to say : " The only 
reason, I believe, why a freeman is bound by 

human laws, is, that he binds himself 

If one freeman, an original sovereign, may do 
this, why may not an aggregate of freemen, a 
collection of original sovereigns, do this like- 

1 "It is a compact among the people for the purpose of gov- 
ernment, and not a compact between states. It begins in the 
name of the people and not of the states." — Letters of Agrippa, 
Ford's Essays, 112. 

The survival of the compact method of thought is interest- 
ingly shown in Bryce. "The acceptance of the constitution of 
1789 made the American people a nation." "The power vested 
in each state .... belonged to the State before it entered 
the Union." "The loosely confederated States of North 
America united themselves into a nation." — American Common- 
wealth, abridged ed., pp. 16, 229, 167. 



Constitutional Construction 221 

wise ?"* Jay asserted, with a clearness uncom- 
mon even in later decisions, that the people in 
their collective and national capacity estab- 
lished the Constitution. But he also said in 
this immediate connection: "Every state con- 
stitution is a compact made by and between the 
citizens of a state to govern themselves in a 
certain manner; and the Constitution of the 
United States is likewise a compact made by the 
people of the United States to govern them- 
selves as to general subjects in a certain manner. 
By this great compact, however, many pre- 
rogatives were transferred to the national 

government " a He then reached the 

conclusion that the "sovereignty of the nation 
is in the people of the nation and the residuary 
sovereignty of each state in the people of each 
state." 

1 Chisholm vs. Georgia, 2 Dallas 415, 456. 

2 Ibid., 471. For a similar idea as to division of sovereignty 
resulting from compact, see Pinkney's oft-quoted speech on the 
Missouri restriction: "The parties gave up a portion of that 
sovereignty to insure the remainder. As far as they gave it up by 
the common compact, they have ceased to be sovereign." Benton's 
Abridgment, VI, 439. Monroe said, "In the institution of the 
Government of the United States by the citizens of every State a 
compact was formed between the whole American people which 
has the same force and partakes of all the qualities to the extent 
of its powers as a compact between the citizens of a State in the 
formation of their own constitution." — Message, May 4, 1822; 
Richardson, Messages and Papers, II, 147, 148. 



222 The Courts, the Constitution, and Parties 

In the light of the material which I have 
cited, one might perhaps be fully justified in 
affirming that the framers of the Constitution 
considered it a compact analogous to a social 
compact, and similar in its origin to the state 
constitutions in all essential particulars. I 
think that such is the reasonable conclusion. 
But whether that be the proper generalization 
or not, it seems perfectly safe to assert that the 
student who is interpreting the words and acts 
of men of the last century must remember the 
contract theory and the philosophy of Locke. 
It is well also to remember that men who were 
thinking in terms of the compact philosophy 
could believe in the establishment of a perma- 
nent and indissoluble body politic as the result of 
agreement between hitherto separate bodies; 
that they could believe in the permanent bind- 
ing effect of a law which had its origin in con- 
sent. To them the correlative of "accession" 
was not secession, but a continuing relationship. 

The Virginia and Kentucky Resolutions, if 
approached from the viewpoint of the compact 
philosophy, may bear an interpretation quite 
different from that commonly given them, and 
different from that assigned to them by Hayne 
and Calhoun, who had begun to speak in the 
terms of organic philosophy. In other words, 



Constitutional Construction 223 

the Virginia Resolutions, at least, can bear just 
the interpretation which Madison insisted, 
thirty years after their appearance, was the 
correct one, because in 1830 he was still speak- 
ing as a disciple of Locke and as a statesman of 
the eighteenth century. If sovereignty is indi- 
visible — as it must necessarily be in the organic 
conception of the state — then if Kentucky is 
sovereign, it is wholly self-determinant. But if 
sovereignty is divisible, the assertion that 
Kentucky is sovereign is not incompatible with 
the idea that the United States is also possessed 
of sovereignty. If a body politic, a state, can- 
not originate in agreement, then to call the 
Constitution a compact, and to say that "each 
state acceded as a state and is an integral 
party" 1 is equivalent to saying that the Consti- 
tution is a mere treaty and the United States 
merely a league. But if a body politic, a new 
indissoluble whole, can be established by agree- 
ment, between hitherto separate units, if govern- 
ment rests on consent, if a solemn compact 
is the surest foundation of a state, then to say 
that the Constitution is a "compact to which 
the States are parties, " is not a declaration that 
the United States is not a unit or a state. If 
law is the expression of the will of a pre-existing 

1 First Series, Kentucky Resolutions. 



224 The Courts , the Constitution, and Parties 

superior body, and if the Constitution is an 
agreement between equals, then it can in no 
true sense be law. But if the only way in which 
a man can be bound is by binding himself, if 
law springs from consent and agreement among 
equals, if government itself rests on consent, 
then the Constitution may have been a com- 
pact and nevertheless be law. 

The Virginia Resolutions, though based on 
the principles of the social compact, are not 
entirely explicit. They may have asserted no 
more than the right of the states, the parties 
of the compact, to protest; but they probably 
meant more. Evidently combating the notion 
that the central government was the final and 
exclusive judge of the extent of its own author- 
ity, the resolutions declare that the states must 
maintain " within their respective limits the 
authorities, rights and liberties appertaining to 
them . ' ' There thus arose the old problem of the 
legal order under a government resting on com- 
pact or consent; who was to judge whether the 
compact had been violated? If the people 
were to judge, was this not the same as mere 
wanton anarchy or confusion? Locke faced 
the question in his famous Second Essay: 
"Who shall be the judge whether the prince or 
legislative act contrary to their trust? . . . . 



Constitutional Construction 225 

To this I reply, The people shall be judge. 
.... If a controversy arise betwixt a prince 
and some of the people in a matter where the 
law is silent or doubtful, and the thing be of 
great consequence, I should think the proper 
umpire in such a case should be the people." 1 
This of course is something entirely different 
from the right of each man to judge and to 
refuse to be bound by a command he believes 
to be beyond the power of the prince under the 
compact. Locke also declares for majority 
rule: "For, when any number of men have, by 
the consent of every individual, made a com- 
munity, they have thereby made that com- 
munity one body And thus every man 

. . . . puts himself under an obligation to every 
one of that society to submit to the determina- 
tion of the majority and be determined by it." 2 
If Madison meant to assert that the mean- 
ing of the compact should be decided by the 
majority of the states, his doctrine was in 
essence that of Locke just given : if he meant — 
as probably he did not — that each state should 
individually judge, his doctrine is not essentially 
different from that of Jefferson and the Ken- 
tucky Resolutions which I shall discuss in the 

1 Second Essay, §§ 24, 242. 

2 Ibid., §§ 06, 07. 



22,6 The Courts, the Constitution, and Parties 

next paragraph. This idea, that those that 
made the compact must judge, came out even 
in Calhoun's theories, although as we shall see 
Calhoun did not at all consider the Constitution 
a social compact, and did not think, to use 
Locke's phrase, that a number of men by the 
consent of every individual could make a com- 
munity. Partly because he desired to prevent 
the disorganization, implied by complete state 
sovereignty, and partly because he wished to 
maintain the idea that there was something less 
than palpable interstate anarchy based on mere 
state caprice, he provided in his scheme for a 
convention of the states, in spite of the fact 
that, in accordance with his theories of sover- 
eignty, even three-fourths of the states could 
not bind the individual protesting state, which 
must retain the right to pass upon the constitu- 
tion and to leave the Union; it was not obliged 
to submit to the majority. 

Jefferson's resolutions more thoroughly pre- 
sent the social-compact notion than do Madi- 
son's. Suppose the Constitution is a sort of 
compact, analogous to the social compact, made 
up of parties — in this case, states — hitherto in a 
state of nature, and suppose that the govern- 
ment of the new order assumes powers not 
granted by the compact, or, in other words, not 



Constitutional Construction 227 

surrendered by the parties to the compact, 
what is to be done ? In meeting this question 
Jefferson is evidently thinking in terms of 
the compact theory, and this theory must 
always be distinguished from that which would 
look upon the Constitution, or any formal 
organization, as if it were established by the 
will of a body of individuals composing one 
legal or moral person. "Every state," he said, 
"has a natural right in cases not within the 
compact .... to nullify, .... ",etc. These 
words were stricken out and do not appear in 
the final draft of the Kentucky Resolutions as 
they were passed by the legislature. Again he 
said: "That the co-states recurring to their 
natural rights, in cases not made federal," etc. 1 
The whole of these Resolutions is clearly based 
on the theory that each state a party to the 
compact had the right and duty to protect its 
reserved rights, its natural rights, not trans- 
mitted to the government set up by the com- 
pact. This theory is entirely different from 
that which would look upon the states as wholly 
sovereign and possessed of all rights. The 
states had surrendered a portion of their rights; 

1 Italics my own. See Jefferson's Writings, Ford ed., VI, 301, 
308. The l*atter of the two quoted clauses appeared in the last 
clause of the Kentucky Resolutions as adopted. 



228 The Courts, the Constitution, and Parties 

while each state had given up a portion, it was 
entitled to protect the portion not surrendered. 
The argument and the viewpoint are the argu- 
ment and the viewpoint of the American 
Revolution, not of the South in the Civil War. 
The intent was to combat the theory, as the 
Revolutionists had done, that government was 
possessed of all power. The Resolutions have 
commonly been misread because they have been 
viewed from the standpoint of Calhoun's theory 
of law and of state sovereignty, not from the 
standpoint of eighteenth century political- 
thinking. 1 

If one starts with Madison's philosophical 
ideas the interpretation which he put on the 
Virginia Resolutions, when he wrote of them 
in the period from 1830 to 1835, is the reason- 
able, logical, and inevitable interpretation. Is it 

1 Madison, in the days of South Carolina's nullification, evi- 
dently troubled by Jefferson's use of "nullification," thought 
that Jefferson meant by nullification "the natural right, which all 
will admit to be a remedy against insupportable oppression" — 
in other words the right of revolution (Madison's Writings [ed. 
of 1865], IV, 410). This brings up the whole question of the right 
of revolution, one of the most puzzling questions in the realm of 
social compact thinking, and I cannot here discuss it. Evi- 
dently, however, Jefferson was arguing against the theory of 
unlimited power in the national government based on its own 
final power of interpretation; and he was insisting on the right 
of each state to protect its reserved rights, just as an individual, 
entering into the social compact, can defend the rights he has not 
eiven ud. 



Constitutional Construction 229 

proper to approach the resolutions with any 
other ideas than those held by the writer? 
It is worth while to quote a few of his words 
written at this later time: "It has hitherto 
been understood that the supreme power, that 
is, the sovereignty of the people of the States, 
was in its nature divisible, and was, in fact, 
divided . . . . ; that as the States in their 
highest sovereign character were competent to 
surrender the whole sovereignty and form them- 
selves into a consolidated State, so they might 
surrender a part and retain, as they have done, 

the other part Of late, another doctrine 

has occurred, which supposes that sovereignty 
is in its nature indivisible; that the societies 
denominated States, in forming the constitu- 
tional compact of the United States, acted as 
indivisible sovereignties, and, consequently, 
that the sovereignty of each remains as absolute 

and entire as it was then In settling the 

question between these rival claims of power, it 
is proper to keep in mind that all power in just 
and free governments is derived from com- 
pact." 1 

1 Madison's Writings, IV, 390, 391. See also ibid., 61, 63, 75, 
2 94> 395) 4*9- How fully the nullification theory rests on the 
indivisibility of sovereignty is seen by an examination of the 
address to the people of South Carolina by their delegates in 
convention. 



230 The Courts, the Constitution, and Parties 

These words of Madison go, in my opinion, 
to the root of the matter. Calhoun's proposi- 
tion rested on the doctrine of the indivisibility 
of sovereignty, and this was a notion resulting 
from the fact that he was beginning to think 
and speak in terms of the organic philosophy. 1 
He did not, as far as I can find, in so many 
words discard the social contract in general 
until he wrote his Disquisition on Government, 
some sixteen years after the nullification trouble. 
But as a matter of fact the strength of the argu- 
ment for complete state sovereignty and the 
right of secession rests on the philosophic con- 
ception of the indivisibility of sovereignty; 
and coupled with this philosophical concep- 
tion is the idea that states do not originate 
in agreement and that law is the expression of 
the will of a superior being. I do not mean to 
contend that Calhoun consistently spoke in 
terms of the organic philosophy. On the con- 
trary, he occasionally fell back into the thought 
and expression of the preceding generation; 
that was inevitable. But his argument, as it 
was developed, really rested on philosophic 
presuppositions foreign to the thinking of the 

1 Madison, IV, 394, gives a beautiful example of how absolutely 
impossible it was for the clearest thinkers to adhere at first to the 
doctrine of indivisible sovereignty of a "moral person." Rowan's 
speech is in Niles's Register, XXXVIII, Supp., 46. 



Constitutional Construction 231 

time when the Constitution was adopted. 1 If 
the student of Calhoun's writings does not 
agree with me in this, perhaps he will be willing 
to admit that the argument in behalf of state 
sovereignty, as it has been developed and 
worked out, for example by Alexander H. 
Stephens, relies on presuppositions belonging 
to the organic philosophy. When once the 
defender of the position has demonstrated that 
the states were sovereign before the Constitu- 
tion was adopted and that they adopted the 
Constitution as separate states, he is ready to 
believe his point proved; because he believes 
that unity cannot spring from agreement, that 
an agreement between isolated beings ends in 
agreement and nothing but agreement. 

Madison's letters of the nullification period 
are a complete answer to Hayne and Calhoun, 
written from the standpoint of the men who 
made the Constitution. But the same sort of 
reply came from other sources. Jackson's 
proclamation, for example, is written on the old 
lines of the compact idea: "The Constitution 
of the United States, then, forms a government, 

1 The reader may notice especially that in his letter to Governor 
Hamilton of August, 1832, Calhoun expended great effort to 
show that there had been no such body politic as the American 
people before the adoption of the Constitution. The adoption, 
therefore, he would seem to say, by thirteen bodies politic does 
not make law but agreement. 



232 The Courts, the Constitution, and Parties 

not a league; and whether it be formed by 
compact between the States, or in any other 
manner, its character is the same Be- 
cause the Union was formed by compact, it is 
said the parties to that compact may, when they 
feel themselves aggrieved, depart from it; but 
it is precisely because it is a compact that they 
cannot. A compact is an agreement or a bind- 
ing obligation. It may by its terms have 
sanction or penalty for its breach or it may not." 
Of great interest in this connection are the 
resolutions which some of the states drafted in 
answer to South Carolina. 1 They are exceed- 
ingly good examples of the continuance of the 
social-compact idea and of the compact philoso- 
phy. Massachusetts spoke as she might have 
spoken forty years earlier: "The constitution 
of the United States of America is a solemn 
Social Compact, by which the people of the said 
States, in order to form a more perfect union 
.... formed themselves into one body poli- 
tic." 2 Ohio's answer was much the same: 
"Resolved that the Federal Union exists in a 

1 It is sometimes overlooked that nearly every state which 
answered the resolutions of South Carolina declared her theory a 
heresy and of dangerous tendency. See even the resolutions of 
North Carolina and Mississippi. 

2 State Papers on Nullification, Boston, 1834, 128. The quota- 
tions above given are of course only a small part of these replies. 



Constitutional Construction 233 

solemn compact, entered into by the voluntary 
consent of the people of the United States, and 
of each and every State, and that therefore no 
State can claim the right to recede therefrom or 

violate the compact "* The argument 

in the report of the Senate committee of Mas- 
sachusetts is especially significant, because it 
so clearly and keenly analyzes the position of 
South Carolina and meets the proposition of 
the milliners so squarely. The committee saw 
that nullification rested on this assumption: 
"The States were independent of each other 
at the time when they formed the Constitution; 
therefore they are independent of each other 
now." To one thinking rigidly in the terms 
of the organic philosophy the assumption that 
the states were independent and separate when 
they formed constitutions is equivalent to a 
declaration that they were independent after- 
ward or at least that the mere adoption of the 
Constitution did not deprive them of independ- 
ence. But the Massachusetts committee an- 
swered in terms of the compact philosophy, 
and thus stood in the position of the men of 
1787, who could see no reason why an actual 
unity should not result from consent. "The 
rights and obligations," said this committee, 

1 Ibid., 206. See also p. 214. 



234 The Courts, the Constitution, and Parties 

"of the parties to a contract are determined 
by its nature and terms, and not by their con- 
dition previously to its conclusion." 1 

Generalizations with regard to this subject 
are dangerous and difficult; but it certainly 
seems inevitable that one must draw at least 
this conclusion — Men differed, in part at least, 
because of their different fundamental concep- 
tions, and those conceptions were philosophic. 
One side declared that the Constitution was 
a compact and therefore not binding; the other 
side declared that the Constitution was a 
compact and therefore was binding. One side 
said that sovereignty was indivisible; the 
other declared that it was divisible and had 
been divided. The organic philosophy is ac- 
cepted by modern philosophic publicists and 
writers of political science. Will they say that, 
because the men of 1787 did not act and speak 
in the terms of the philosophy which arose 
from the civilization of the next century, a 
philosophy which was first decisively manifested 

l Ibid., 119. "Now there can be no doubt, that independent 
states are morally as capable of forming themselves into a body- 
politic, as independent individuals Hence, were it even 

admitted, that the states were distinct and independent com- 
munities at the time when they framed the Constitution, the fact 
would no more prove that they are distinct and independent 
communities now, than the fact that two parties to a marriage 
contract were single before its conclusion goes to prove that they 
are single afterward." — Ibid. 



Constitutional Construction 235 

in Hegel and given full expression by the more 
modern political philosophers, they did not do 
what they intended to do ? Would it not be as 
wise to insist that, inasmuch as Locke's philoso- 
phy is now rejected, James II was not over- 
thrown, and that his descendants are entitled 
to exercise the prerogatives of the British 
crown ? The judicial construction of the Con- 
stitution has remained in large measure in 
accord with the compact philosophy. Shall we 
declare that judges and lawyers must abandon 
the traditional idea of the division of sover- 
eignty or the theory that the states come into 
the Union surrendering a portion of their 
sovereignty, and that the acceptance of the 
Constitution made the American people a 
nation ? Is there not much to be said in favor 
of adherence to old and original notions ? 

But the organic philosophy of course obtained 
its followers among those who gave the national 
construction to the Constitution, and before the 
Civil War men were meeting the advocates of 
secession on their own ground. 1 The organic 

1 1 have omitted reference to Webster, because Webster's 
speeches on the subject require longer and fuller exposition than 
I can give them in this article. Story, too, deserves special 
examination; but, as was to be expected in his time, there is 
great confusion in his writings and a single idea is not carried 
through logically. He sometimes talks in terms of compact; 
sometimes not. 



236 The Courts, the Constitution, and Parties 

character of the United States can be sustained 
on an interpretation of acts, facts, and forces of 
the Revolutionary period, 1760-90, which takes 
into account the realities which underlay all 
seeming conditions or the conscious acts of men. 
I do not mean to affirm or deny that men were 
clearly conscious of national life and of the idea 
that the states were not truly sovereign. 1 I 
mean simply to say that by the very character 
of the organic philosophy one is compelled to go 
beneath the surface and to see realities. Of 
course men, who argued from the basis of the 
organic idea and nevertheless maintained that 
the United States was more than a multiple of 
units organically separate, did not in so many 
words declare that they had taken up new 
philosophic ground; but in fact they had left 
compact thinking behind them and from the 
new viewpoint met the declaration of state 
sovereignty with a new interpretation of history 
which naturally and logically sprang from the 

1 1 have already shown that some men believed that the states 
were not made independent of each other by declaring independ- 
ence from Great Britain. See the speech of Pinckney before the 
South Carolina Convention, as well as many assertions in the 
Philadelphia Convention, or Hamilton's well-known statement 
that a nation without a national government was an awful 
spectacle. They were more or less conscious of the reality — the 
existence of national life. 



Constitutional Construction 237 

new methods of thought. The ordinary mode 
adopted was to deny that the states were ever 
sovereign and to insist, as Lincoln did, that 
the Union was older than the states. 

An excellent example of this method of 
interpreting history is found in Alexander 
Johnston's article on state sovereignty in 
Lalor's Cyclopaedia. Granted that sovereignty 
is not simply law-making power, but the will, 
the impulse, the controlling motive of a mass of 
people organically fused together, where are we 
to find such a will, where are we to find such 
actual fusion, this dominating reality, before 
1789? Evidently not in the incompetent 
states, for to call them sovereign is to give a 
meaning to sovereignty incompatible with the 
organic philosophy: "The states declared 
themselves sovereign over and over again; but 
calling themselves sovereign did not make 
them so. It is necessary that a state should be 
sovereign, not that it should call itself so, 
while still sheltering itself under a real national 
authority. The nation was made by events and 
by the acts of the national people, not by empty 

words or by the will of sovereign states 

The national feeling held the nation together, 
and forced the unwilling state governments to 



238 The Courts, the Constitution, and Parties 

stand sponsor to a new national assembly. 
Such was the convention of 1787. " z 

Now my contention is that this philosophic 
interpretation of facts, seizing the underlying 
verity, is not only admissible but necessary for 
those who insist on reading the events of those 
days from the viewpoint of the organic philoso- 
phy. But I also contend that if the conscious 
deeds and words of men are to form the sole 
basis of our argument, then we are thinking as 
becomes those who are bound by the concep- 
tions of the compact philosophy, the distinguish- 
ing characteristic of which was that it never 
went below the consciousness in whatever field 
of human thinking it showed itself, in the two 
centuries during which it reigned supreme; and 
we are also bound to remember that the framers 
were thinking and speaking in terms of compact 
and believed that agreement could establish 
unity. 

That methods of constitutional interpreta- 
tion as well as arguments on the essential 
character of the United States should be 
influenced by the development of political 
philosophy was inevitable. For philosophy is 
only one field of thought, unless it be, as the 
philosophers claim, the sum of all. The politi- 

1 Lalor's Cyclopaedia, III, 791. 



Constitutional Construction 239 

cal philosophy of this century is merely the 
systematization of ideas and modes of thought 
produced by the developments of the century. 
And it is exceedingly significant that the organic 
idea should have first been used in behalf of 
a declaration that the United States was not 
organic and that it should have found expres- 
sion in the acts of a state where society was and 
had been from the beginning peculiarly unitary 
in its makeup, in the acts of a state which had 
from early days felt its individuality. It is a 
striking paradox that the organic philosophy 
should have formed the basis for the defense 
of slavery which was disorganizing the nation. 
Paradoxical, too, is the fact that abolitionism 
received its being from the growing realization 
that all men were one, from the prevalence of 
the humanitarian spirit which has found verbal 
formulation in the precepts of the organic 
philosopher. 

Wben organic thinking has shown itself in all 
fields of thought — in science where men have 
ceased to speak of the isolated creation of 
matured species, or even of the isolated develop- 
ment of a single animal, but speak rather of the 
organic character not simply of an isolated speci- 
men but of the natural world; in history, where 
the investigator looks behind the conscious acts 



240 The Courts, the Constitution, and Parties 

of men to the hidden forces which were working 
in society, and smiles at the idea that Caesar 
overthrew the Republic or that Lincoln de- 
stroyed slavery; in sociology, where students 
give themselves up to the study of social change 
and social regeneration; in metaphysics, where 
the scholar seeks to show the unity, which 
exists in all seeming diversity, and can explain 
nothing except in its relations and as part of a 
whole — when all the forces of modern life have 
drawn men together and made society more 
truly and really one than ever before, save, 
perhaps in the little states of ancient Greece, 
it is perfectly inevitable that an organic notion 
of political society should prevail. It was in- 
evitable, too, that political thinking and argu- 
ment in the course of this century should have 
been materially affected by the modification and 
development of society. The constitutional 
history of the United States is in no small degree 
taken up with tracing opinion and assertion as 
to the actual character of the Union; and the 
historian is compelled to notice the change 
which took place in the opinions, words, and 
thoughts of statesmen as they were influenced 
by the change in society and by the prevalence 
or growth of doctrines as to the origin and 
nature of the state. The Civil War was 



Constitutional Construction 241 

doubtless caused by economic conditions, and 
by economic and moral differences; but each 
of the contending parties was struggling for 
what it believed to be the law. Opinion as 
to what was the law depended on the inter- 
pretation of history and also upon the 
acceptance or rejection of certain philosophic 
conceptions. 

My purpose in this paper has been to show: 
(1) that the men of one hundred and twenty- 
five years ago thought within the limits of the 
compact philosophy; (2) that they carried the 
compact idea so far that they actually spoke 
of the Constitution as a social compact; (3) 
that it is necessary for us to remember their 
fundamental ideas and to interpret their words 
and conscious acts in the light of their methods 
of thought; (4) that in the development of 
modern organic philosophy new ideas were 
introduced and new meanings assigned to 
terms; (5) that from this latter fact, from the 
inability to agree on fundamental conceptions, 
arose confusion; (6) that the doctrine of state 
sovereignty as it has been developed rests on 
philosophic presuppositions almost if not en- 
tirely unknown to the framers of the Constitu- 
tion; (7) that if we use the terms and insist 
on the ideas of the organic philosophy, we are 



242 The Courts, the Constitution, and Parties 

entitled to seek the realities lying behind the 
words of men. 1 

1 The argument for state sovereignty rests on two main pillars. 
One we may call historical statement; the other is metaphysical. 
The historical statement rests on an interpretation of facts in a 
way characteristic of compact thinking, i.e., it is superficial, 
not seeking realities back of appearances or mere conscious acts. 
The metaphysical suppositions are organic — or non-compact: 
STATE SOVEREIGNTY 

I II 

a) The states were separate, 1776-88. a) The action of separate entities can- 

b) They adopted the Constitution as not make unity. 

separate entities. b) Law rests on will, on power, not od 

consent or agreement. 
c) Sovereignty is indivisible. 

Strike out either one of these pillars and the main argument 
for state sovereignty falls. 



V. A WRITTEN CONSTITUTION IN 

SOME OF ITS HISTORICAL 

ASPECTS 



A WRITTEN CONSTITUTION IN SOME 
OF ITS HISTORICAL ASPECTS 1 

That an institution of government, like an 
institution or practice of society, is a growth 
and not a creation is now an accepted proposi- 
tion. No one seeks to argue for it; no one 
endeavors to deny it. The introduction of this 
idea into our political thinking strongly in- 
fluenced our methods and our ideas. In no 
field of study has the evolutionary idea shown 
itself more strongly than among workers in 
history and political science. And yet occa- 
sionally one is surprised by seeing how recently 
this idea has manifested itself in the examina- 
tion of some historical problems. Until a 
short time ago, the Constitution of the United 
States was commonly spoken of as if it was 
created by some two score men who debated 
and wrangled in the old state house at Phila- 
delphia during the anxious and trying summer 
of 1787. Of course it is true that all things are 
new; and the federal Constitution was in one 
sense a new product of the past. But the 

1 An address delivered at the celebration of the fiftieth anni- 
versary of the adoption of the Constitution of Iowa, March 19, 
1907. 

245 



246 The Courts, the Constitution, and Parties 

historian sees its fullest meaning only when 
he studies the long period during which the 
fundamental ideas and the master principles 
of the instrument were being worked out. The 
idea that the Constitution was not in great 
measure made at Philadelphia was first suc- 
cessfully attacked only about twenty years ago, 
when scholars began to show how large a por- 
tion of its contents was borrowed from state 
constitutions, which were themselves the heirs 
of colonial practices. 

But this notion that at given moments, at 
trying crises, inspired geniuses arise to fashion 
wondrous entities out of preceding nothingness 
has played in all our affairs a conspicuous role. 
The American people, who but yesterday were 
a European people, casting aside the trammels 
of old-world life, and breaking their way into the 
new atmosphere of an untried continent, forced 
to shift for themselves and to adapt themselves 
to strange conditions, believed actually that 
they were sufficient in their strength at any 
moment to create what they needed or desired. 
This absence of historical perspective was per- 
fectly natural, and there was something inspir- 
ing in the enthusiasm and assurance with which 
problems were solved, or at least valiantly 
attacked. Possibly this easy self-confidence 






A Written Constitution 247 

was quite as useful and much more effective 
than would have been any serious contempla- 
tion, any sober reflection over the forces, the 
successes, and blunders of the past. And yet 
the readiness to go ahead blindly in answer 
to the promptings of the moment is not the 
characteristic of the wisest statesmanship; it 
is not the nature of the freest state; for the 
highest freedom must come from right think- 
ing; the best statesmanship must come 
from self-knowledge — a knowledge of the real 
state of which the statesman and lawmaker 
is himself a part, a knowledge to be gained 
by a study of the state's growth and not sim- 
ply from the little space of one's own forgetful 
experience. 

This introduction is not, I think, inappro- 
priate on an occasion when we celebrate the 
founding of a constitution which has lasted half 
a century. We are pausing here to look back 
for fifty years, to do honor to the men who were 
instrumental in bringing into existence the 
fundamental law of this great state, to realize 
that under that law a people has grown in num- 
bers, in strength, and in prosperity, and to be 
thankful for the wisdom of the statesmen who 
wrought so wisely and so well. But we need 
not think that the constitution of Iowa was 



248 The Courts, the Constitution, and Parties 

made here fifty years ago, or that we can under- 
stand its significance, if we limit our view to the 
debates of the convention, the decisions of the 
courts, or the prosperity of the people. This 
constitution, like all others, has a long and 
interesting history, reaching far back of the days 
when these men met here. Some of its pro- 
visions can be clearly known, only if we follow 
their courses through centuries. 

ORIGIN OF AMERICAN CONSTITUTIONS 

Students of American constitutional history 
begin at least with the charters that were issued 
at the end of the fifteenth century. In fact the 
colonies that sprang from feudal beginnings, 
like Maryland or Pennsylvania, demand for 
their understanding a knowledge of feudal 
principalities; Maryland takes us back to the 
time of William of Normandy, if not eleven 
hundred years to the time of Charles the Great. 
A colony like Massachusetts, founded as a 
corporation, calls for an understanding of the 
early trading companies of half a millenium 
ago. And thus we see that the modern state 
constitutions have an honorable lineage; in- 
stead of being struck off in a moment of 
inspiration to suit an emergency or a temporary 
exigency, they are the products of effort and 






A Written Constitution 249 

struggle and experience; they are molded 
and fashioned by the needs of passing genera- 
tions. Such a thought as this doubtless makes 
us hesitant about recasting our laws and makes 
us skeptical of our ability lightly to create 
what the moment seems to demand. But the 
development also shows us that man cannot 
consciously create unchanging institutions for 
the future; that history, social forces and needs 
are the real makers. And after all there is no 
great need of unreasoning fear; you cannot 
cut yourselves off from the past; it is here with 
you and will meet you as a friend or an enemy 
at every turning of your career. 

It is not my intention to dwell at length 
on the development of state constitutions from 
the old corporation charters. The examples 
of Connecticut, Rhode Island, and Massa- 
chusetts are there where everyone may read. 
It is interesting, to be sure, to trace the develop- 
ment of the Massachusetts constitution from 
the charter, or articles of incorporation, of a 
company — the president or governor of the 
company became the governor of a common- 
wealth; the assistants (the board of directors 
as we might call them) became the council or 
senate; the freemen of the company (the stock- 
holders, to use a modern term) became, by 



250 The Courts, the Constitution, and Parties 

representation, the deputies, or later the house 
of representatives. It is profitable to trace the 
growth of Maryland from a palatinate modeled 
on the palatinate of Durham into a self- 
governing state, gradually shaping its institu- 
tions to meet the wants of a free people who 
were growing in capacity for self-government 
under the stimulus of new opportunity. And 
of course we must remember that these new 
western states were, in many ways, but replicas 
of the eastern states, and that these new com- 
munities owe their constitutions therefore to 
the long history of aspiring colonists and to 
the shaping and upbuilding work that went 
on through a century and more of colonial 
history. 

There are, however, other aspects of the 
subject upon which I wish to dwell; only by 
studying these can we see the full significance 
of the modern written state constitution. I 
have intimated that the history of these docu- 
ments can be traced back to the feudatories of 
the Middle Ages or along another line back to 
the trading charters of the same era. But fol- 
lowing another line, a line of fundamental 
ideas, we find again that we need to go some 
distance to the past to appreciate what we 
have. 



A Written Constitution 251 

COMPACT AND NATURAL RIGHTS 

It has been said that the modern idea of 
popular sovereignty, of democratic control, 
took its rise with the little groups of Separatists, 
who in the time of Elizabeth set up their right 
to come together and worship as they chose. 
Each little band of worshipers considered itself 
a church, capable of deciding for itself the 
principles of its action and establishing its own 
polity. It is true that any method of historical 
investigation, which attributes a wide and 
influential movement vitally affecting a great 
portion of mankind to one particular episode 
or to one group of men who can be isolated and 
numbered, has its elements of untruth; but the 
connection between the movement for self- 
determination in church and the movement for 
self-determination in politics is fairly evident. 
As to form and methods at least this connection 
is clear. The assertion that men could govern 
their own ecclesiastical affairs was a revolt 
against the principle of superiority in the affairs 
of the world, a revolt which made way for the 
assertion of popular control in political affairs. 
I am not now insisting on the value of the 
Reformation, which many would consider a 
misfortune. I am not now emphasizing the 
individualism that is significant of the Ref orma- 



252 The Courts, the Constitution, and Parties 

tion and to which many would attribute the 
growth of personal freedom. I am confining 
my attention to this movement for ecclesiastical 
self-government in England. 

We know very well that it was a little body 
of these Separatists that founded Plymouth and 
there set up their self-governing church and 
self-governing state. The famous Compact, of 
which we have heard so much, has been both 
unwisely praised and unwisely depreciated. 
Upon it the little Pilgrim state was founded; 
for, whatever we may say of technical law and 
of the subordination to England, Plymouth 
was to all intents and purposes self-governing 
and was reared on this Compact, which was a 
church covenant in fact, turned to new uses to 
form the basis of a state. It was but the first 
of a series of plantation covenants; for, while 
the constitution of Massachusetts was forming, 
growing out of the charter of a corporation, 
here and there men were organizing little self- 
governing communities, built upon the notion 
of individual right to do what one would with 
oneself and on the notion that one could form 
a community by agreement with others. We 
have not in our histories sufficiently marked the 
significance of these plantation covenants. We 
have treated the compact political philosophy 



A Written Constitution 253 

of Milton and Sidney and Locke, and other great 
writers of the seventeenth century, as if they 
were writing in the rarified air of abstractions 
and vague theory, and as if the compact origin 
of society and the state were but a convenient 
fiction or a useful fancy, forgetting how it in 
essence underlay the doctrine of Independency 
and was carried into effect in the churches of the 
Separatists, forgetting, too, that in the wilds of 
the new world little groups of men were giving 
examples of common life and political control. 
At a time when men were actually living 
up to the notion that people were separate 
and could organize a body by agreement, it is 
not to be wondered at that the philosophers 
and political writers should set up political 
theories based on the notion that society was 
organized by the action of detached individuals, 
by abstract individuals, so to speak, who came 
together to surrender a part of their self-control 
in order to preserve the rest. Not that I mean 
to declare that the philosophers actually bor- 
rowed their ideas solely from the towns of New 
England, or even, perhaps, from the Independ- 
ents of old England; for the doctrine of com- 
pact and of a natural right that antedated 
society was much older than New England or 
than Cromwell's soldiers. The contention is, 



254 The Courts, the Constitution, and Parties 

first, that this philosophy is more concrete and 
appears as a more natural emanation of its 
time, if we connect it with the actual deeds of 
men; and, second, that Independents were 
doing in England in ecclesiastical matters the 
very things which the Puritan philosopher was 
claiming to be the natural order and process of 
things in the social and political world. Any- 
one interested in the political as well as the 
philosophical influence of Independency will 
find food for contemplation in the fact that in 
the efforts at constitution-making during the 
period of the Great Rebellion of England, in 
the arguments for establishing a state without 
a king, the soldiers and officers of Cromwell's 
army, the Independents, very evidently in- 
sisted upon a basis of right and a basis of action 
quite in advance of that set up by the lawyers 
and statesmen of the same party, who had not 
broken away from the old ideas of law and cus- 
tom and were not ready to start with individual 
separation and to announce the right to organize 
a state and a government on the basis of the 
agreement of the people. 

Probably we have not given sufficient weight 
to the influence of New England on Old England 
in the days of the Great Rebellion. To measure 
influence is beyond the skill of the historian; 



A Written Constitution 255 

but we are justified in believing that the reaction 
of the New World on the Old was even then con- 
siderable. We are justified in believing that 
the Puritans of England knew of the success of 
the men who came across the water to found 
a Bible commonwealth, and it seems reasonable 
to believe that the example even of such a 
state as Rhode Island, distracted and incoher- 
ent as it seemed to the orthodox men of Boston, 
must have had considerable influence with the 
debaters and thinkers of the trying years, when 
men were struggling with a tremendously 
difficult thought — how could a state rid itself 
of a king, and how could a popular government 
resting on the consent of the governed be 
actually brought into existence P 1 

1 No one having any conception of the part played by covenant 
in the theology of at east some of the advanced Protestant sects 
could very well fail to see the connection between the whole 
theological notion and the conception of the organization and 
powers of the state. Not only did churches, the Congregational 
churches, have covenants, but the very existence and perpetuity 
of the world rests, according to this notion, on covenant and 
agreement. It is the covenants of God, the pledges by which 
he binds himself, upon which we rest and upon which we base 
our hopes and faith. The assurance that the Great Sovereign is 
bound to his people by solemn covenant and will not disregard 
his obligation is thus the basis of Christian hope. Covenant, 
agreement, and promise formed the serious central thought of 
stability, strength, and fulfilment. In this way, as well as in 
many others, the essential notions of Protestant theology worked 
their way into the conception of the character and obligation of the 
state. 



256 The Courts, the Constitution, and Parties 

It was inevitable that the men, who were 
seeking a new political order in the middle of 
the seventeenth century, should have trouble 
in seeing their way with clearness along lines 
that appear to us now fairly obvious. That 
government sprang originally from the people 
was proclaimed as a self-evident truth. "It 
being manifest/ ' as Milton says, "that the 
power of kings and magistrates is nothing else 
but what is only derivative, transferred, and 
committed to them in trust from the people to 
the common good of them all." But how a new 
government was actually to be brought into 
existence was another question, a government 
derived from the people and obtaining its 
powers from the people. Devoid of practical 
machinery and experience, the advanced 
thinkers of England proposed to act upon theory 
and to establish a government on the expressed 
consent and agreement of individuals, as if 
each were detached and could enter by his 
signature into a new compact and establish a 
new government over himself. Nothing is more 
suggestive to the student of American political 
institutions than the proposals and the argu- 
ments of the men of the Great Rebellion in 
England, when they were confronted with the 
task of organizing a commonwealth, of carrying 



A Written Constitution 257 

out their philosophic ideas and of really rearing 
a state on the consent of the governed. 

It is full of interest to American students 
because one hundred and twenty-five years 
later a like task faced the men of the Revolu- 
tion, who sought argument for denying the 
asserted control of Parliament and for throw- 
ing off the rule of a king who by "a long train 
of abuses and usurpations' ' had "evinced a 
design to reduce them under absolute despot- 
ism." The argument and philosophy of the 
American uprising against George III take us 
back at least to the Great Rebellion and to 
Cromwell's Ironsides and disclose the essential 
truth in the assertion, that in the American 
Revolution the England of the seventeenth 
century met and maintained itself against the 
England of the eighteenth. 2 No sententious 
utterance like this is wholly comprehensive and 
sound; but it brings out the great fact that the 
principle that threatened the divine right of 
kings and asserted the divine right of the people, 

2 See for one illustration of the likeness of the two revolution 
movements the following: "That when a person trusted with a 
limited power to rule according to lawe and by his trust (with 
expresse covenant and oath also) obliged to preserve and protect 
the Rights and Liberties of the people .... shall flye to the way 
of force upon his trusting people, and attempt by it to uphold and 
establish himself in that absolute tyranical power so assumed 
over them, and in the exercise thereof at pleasure; such a person 



258 The Courts, the Constitution, and Parties 

and that proclaimed that government was 
derivative and kingship a trust, found its 
refuge in America in the seventeenth century, 
developed there in quietness in the spirit and 
capacity of the people, and came forth to 
challenge the power of England in its Stamp 
Acts and Port-Bills, and to be used as the 
basis for proclaiming that these united colonies 
are and of right ought to be free and inde- 
pendent states. 

I wish this statement to be taken not merely 
as an attempt at rhetoric, but as sober historical 
truth. The philosophy and the argument, the 
basis of assertion of the American Revolution, 
are a striking reproduction of that of the great 
rebellion in England. The interesting historical 
fact is that the declaration of the philosopher 
and the soldier and the Separatist pamphleteer 
of the middle of the seventeenth century formed 
the argument for the successful revolution of 
the eighteenth; and their descendants on this 
side of the water carried those ideas into effect, 

in so doing, does forfeit all that trust and power he had, and 
(absolving the people from the Bonds of covenant and peace 
betwixt him and them) does set them free to take their best 
advantage, and (if he fall within their power) to proceed in judge- 
ment against him, even for that alone if there were no more." — A 
Remonstrance of His Excellency Thomas, Lord Fairfax and of the 
General Council of Officers, London, 1648, pp. 21, 22. Compare 
this with the thought of the Declaration of Independence. 






A Written Constitution 259 

not simply by throwing off the power of George 
III, but by embodying the ideas in institutions 
and by reducing them from abstract formulae 
to actual practical governmental principles. 1 
As far as theory was concerned, the men of 
1650 had worked out fully the basis of the 
American Revolution. 

The notion of natural right, of the origin of 
government in agreement and consent, did not 
find its sole expression in the manifesto of inde- 
pendence or in the oratory of the statesman and 
the demagogue. America, taught by experi- 
ence with popular institutions, proceeded, 
sometimes with misgiving and doubt and at 
other times with haste and overconfldence, to 
work out the methods for establishing govern- 
ments on the free consent of the people. The 
statesmen of the time might have actually 
treated each individual as if he were wholly 
abstracted from society and ready once again to 
enter into a new social order out of a state of 
nature in which he was a detached and separate 
individual; for such indeed, as in 1650, was the 
theory underlying much of the thinking of the 

1 The student of the Revolutionary period knows that many 
lines of argument were followed. I have in mind here the salient 
and impressive argument that came from Massachusetts and to 
some extent from other colonies, from Jefferson as well as from 
Samuel Adams. 



260 The Courts, the Constitution, and Parties 

time and underlying the constitutions that were 
to be framed; but the leaders did not totally 
disregard established institutions, draw up a 
contract, and call for signatures. In some of the 
states the methods were illogical; in Massa- 
chusetts, under the guidance of John Adams, a 
new constitution was framed on the logic of the 
principles of the Revolution. The constitution 
of Massachusetts, drawn up by a body of 
delegates especially chosen for the task, was 
discussed and debated in the town-meetings 
and ratified by their votes. In that state there 
came clearly forth the functions, the place, and 
the character of the constitutional convention 
— one of the greatest contributions, perhaps the 
greatest contribution, of America to politics 
and political order — a method of establishing 
a commonwealth without confusion, a method 
of permitting the people to rear, as Adams said, 
"the whole building with their own hands," a 
method of making actual the dreams of philoso- 
phers, political pamphleteers, and statesmen 
of the seventeenth century in England. 

Again, let us not lose ourselves in words; this 
identical problem had been attacked by Puri- 
tans, from whom the early men of Massachusetts 
came. The significance of what the Americans 
did in developing the constitutional convention 



A Written Constitution 261 

can be seen in its simplicity and force, only 
when seen with this background of discussion, 
uncertainty, and desire that fully showed them- 
selves in England one hundred and thirty years 
before Massachusetts was called on to form her 
constitution. It may be that, had the prin- 
ciple of contract been strictly lived up to, no 
one would have been bound by the Massa- 
chusetts constitution unless he voted to ratify 
it; but doubtless any malcontent would have 
been free to leave the new commonwealth; and 
we must not lose sight of the fact that the con- 
stitution purported on its face to be a social 
compact. 1 

INDIVIDUALISM IN MODERN LAW 

The principle that the constitution is a 
compact into which each individual enters out 
of a state of isolation, which the philosophers 
called the state of nature, has deeply and per- 
haps permanently affected our public law. It 
is astonishing and impressive to see the modern 
jurist talking in terms of compact and natural 

1 "We therefore, the people of Massachusetts, acknowledging, 
with grateful hearts, the goodness of the Great Legislator of the 
universe, in affording us in the course of His providence an 
opportunity, deliberately and peaceably, without fraud, violence 
or surprise, of entering into an original, explicit and solemn com- 
pact with each other, .... do agree," etc. — Preamble of the 
Constitution of Massachusetts. 



262 The Courts , the Constitution, and Parties 

rights, after the fundamental conceptions, on 
which those terms rest, have altogether disap- 
peared from ordinary modern thought and 
modern life. We know perfectly well that 
government rests on authority, not on the 
consent of separate individuals; that that 
authority is the people of the state as an 
organized political unit; that the constitution 
expresses the will of that unit, which is known 
to the law and exists in fact as an entity to 
establish the constitution. We know, too, that 
there never was a state of nature in which men 
existed as monads and from which they entered 
into society. We know that rights in any 
legal sense are the creation of law and exist 
because of government, and that all the new 
needs and the new justice are not implanted 
in the heart of primeval man, but have come 
as he has grown and as society has developed 
in depth and complexity. We see that the 
whole thinking, upon which the notion of 
natural rights and of compact rests, deserves 
the word artificial; it includes the notion that 
men consciously, out of stuff in their own hands, 
can deliberately make a society or a state, as a 
cabinet-maker would fashion a bureau or an 
easy chair. We know that every branch of 
modern scientific thought is governed by the 



A Written Constitution 263 

thought of growth, of unfolding, and not of 
conscious creation. We thus find perpetrated 
in our constitutional law — not to speak of 
other branches of jurisprudence — a method of 
thinking that the rest of society has entirely 
abandoned; and one of the greatest puzzles of 
modern times is to adapt a system of judicature 
founded in extreme philosophic individualism 
to the needs of a society which in some of its 
aspects is almost burdened with its capacity for 
expressing the truth of organic growth and 
organic being. 1 

Perhaps it would be more nearly correct to 
say that there is always in society a conflict 
between the individual a id society; but, with 
all our aggressive individual initiative, the 
Americans have been gifted too with humani- 
tarian sentiment and with remarkable power of 
political and social combination. The great 
combines are in themselves made possible by 
this spirit and this capacity; and it is a striking 
fact that, manifesting as they do this phase of 
American ability, and illustrating in all their 

1 1 do not mean to lose sight of what appears to be an historical 
fact and therefore not artificial, that from time immemorial there 
seems to have been in England a sense or a feeling, if not properly- 
expressed in law, that there were "real restrictions" upon king and 
Parliament, a certain continuance through the centuries, of the old 
individualistic feeling of the Teutonic people. Cf . Jellinek, The 
Declaration of the Rights of Man and of Citizens, 93, Farrand trans. 



264 The Courts, the Constitution, and Parties 

activities the essential organic compactness of 
American life, they seek to be governed by the 
principles of pure individualistic law, inherited 
from a time of individualistic thought and 
endeavor. I am not unwilling to admit that 
the doctrine of natural right and of contract 
may be a convenient fiction, and I should like 
to believe that law, based on a principle of 
thinking foreign to the activity and foreign 
to the thought of the community in which it 
acts, can be abiding and useful; but there is 
an evident difficulty in adjustment. Whatever 
my fears or beliefs may be, the facts are so; 
and surely it is a startling truth, that just as a 
phase of human thought, which in some of its 
aspects was older than the Christian era, was 
beginning to pass away from the human mind, 
new bodies politic should be established in this 
new world based on these old fundamental con- 
ceptions, which were indeed for the first time 
thus given adequate institutional expression. 
The great movement for individualism came 
to its fullest fruitage in the Revolution, and was 
installed in instruments of government that 
were declared to be permanent; states were 
organized on a basis of individualistic democ- 
racy, just as democracy was about to leave 
its phase of pure individualism and reach out 






A Written Constitution 265 

for a higher, deeper, and different meaning — 
moving on into a condition of society in which 
the most selfish should reap their highest reward 
not through individual and detached effort, but 
through combination; in which the propelling 
forces that are upbuilding come from surrender 
to the spirit of brotherhood and from an effort 
to raise one's fellows; in which, more than ever 
before, government is called on to do the things 
we cannot separately do ourselves. We have 
fully abandoned the idea that the sole duty of 
government is to keep the peace and to leave 
to the individual the task of struggling in all 
kinds of competition with his environment and 
his neighbors. We do not believe, as Tom 
Paine says, that government, like dress, is a 
badge of lost innocence. We have left far 
behind in most of our thinking the notion that 
government is man's enemy. The old demo- 
cratic ideal of man free from restraint, rising by 
virtue of his own buoyancy to the place he 
earns by dint of his unaided effort, has not, we 
hope, entirely gone; subjection or a stagnant 
condition appears still the essence of injustice. 
But we are beginning to see that competition, 
unqualified and unregulated, may be bitterly 
unjust, and above all that great combinations 
that take advantage of social organization to 



266 The Courts, the Constitution, and Parties 

work for personal ends need restraint and con- 
trol in the interest of humanity and society. 
And so again the puzzling problem which is 
being worked out in the legislative halls, in the 
social order, in the books and brains of thinking 
men, is how to adapt institutions based on 
individualism, the product of centuries of effort 
to reach personal right and personal justice 
free from the restraints and the wrongs of 
external and arbitrary power — how to adapt 
such institutions and how to fashion our politi- 
cal thinking to a new order of things. No more 
significant contrast could be made than that to 
be drawn between the utterance of the present 
leader of the party that claims its descent from 
Thomas Jefferson, and the assertions of Jeffer- 
son himself in his famous inaugural of 1801: 1 
" Still one thing more, fellow-citizens — a wise 
and frugal government, which shall restrain 
men from injuring one another, shall leave them 
otherwise free to regulate their own pursuits 
of industry and improvement, and shall not 
take from the mouth of labor the bread it has 
earned. This is the sum of good government, 

1 1 need not say that this contrast is simply an historical fact 
and not intended as an indorsement or refutation of the advanced 
democratic collectivism which now dominates one wing of the 
Democratic party of the day. 






A Written Constitution 267 

and this is necessary to close the circle of our 
felicities/' 

GOVERNMENT BOUND BY LAW 

To understand properly the modern written 
constitution and the problems of its existence, 
we need to look at another line of development. 
The efforts of English history were to establish 
a government of laws and not of men — to dis- 
cover some method of avoiding arbitrary 
government. Of course this effort was directed 
against the king, and, in considerable measure 
because of this opposition to the king, the com- 
mons of Parliament developed their powers 
and their privileges. But in the seventeenth 
century this effort reached a wider stage, and, 
though at various times we see a desire to 
increase the powers of Parliament against the 
king, and though often in fact this desire ap- 
pears to be controlling, it is plain that the ablest 
minds went farther and sought a government 
bound in all its parts by some power greater 
than itself and checked by some restraint which 
it could not sweep aside. One needs to read 
only the instrument of government of 1653, in 
light of the discussions that preceded it, to see 
that it was a faint approach to a realization of 
this idea; and the same thought appears in 



268 The Courts, the Constitution, and Parties 

Harrington's Oceana, a work which had con- 
siderable influence in America one hundred and 
twenty-five years later. 1 

I have remarked on the trouble men had in 
thinking of a suitable means of bringing a real 
popular commonwealth into existence; their 
difficulty in discovering some suitable manner 
of binding the government, when once it was 
created, was even greater. They saw the 
necessity of stability, of regularity, of rigidity 
if you will, in the fundamentals of government 
and in the bounds of its power. Liberty was 
not even for them, in their individualism, mere 
opportunity to do what one would; it consisted, 
in the minds of the best thinkers, in the privilege 
of living under a government restrained from 
acting on whim or caprice. But how attain 
such an end ? No government, it was assumed, 
could rightly disregard the rights of nature; 
every governor must rule for the common good. 
"And so," says Locke in his second Treatise 
on Government, " whoever has the legislative 

1 Harrington approached an adequate description of govern- 
ment by the Boss, when he said, "And Government, to define its 
defects, or according to modern prudence, is an Art whereby some 
Man or some few Men, subject a City or a Nation, and rule it 
according to his or their private Interest; which because Laws in 
such cases are made according to the Interest of a man, or some 
few families, may be said to be an Empire of Men, and not of 
Laws." 



A Written Constitution 269 

or supreme power of any commonwealth, is 
bound to govern by established standing laws, 
promulgated and known to the people, and not 
by extemporary decrees, by indifferent and 
upright judges, who are to decide controversies 
by those laws." 1 It is not clear that Locke 
saw those laws as anything more than laws 
promulgated by the government itself; he did 
not see — perhaps he did not care to — the use 
of a constitution superior to government and 
binding upon it. In the end he resorted to the 
right of revolution, as a remedy or an assurance 
that government would keep within limits: 
"Should either the executive or the legislative, 
when they have got the power in their hands, 
design, or go about to enslave or destroy them, 
the people have no other remedy in this, as in 
all other cases where they have no judge on 
earth, but to appeal to Heaven." 2 

It was this principle of the unalterability 
of standing law that underlay the American 

1 Locke, Second Treatise, § 131. And compare § 22, where he 
declares "Liberty of man in society is to be under no other 
legislative power but that established by consent in the common- 
wealth, nor under dominion of any will, or restraint of any law 
but what that legislative shall enact according to the trust put 
in it." Locke, of course, wrote forty years after the Great Rebel- 
lion; but he phrased admirably much of the thinking on which 
the advanced actors of the Commonwealth proceeded. 

2 Locke, op. cit., § 168. 



270 The Courts , the Constitution, and Parties 

Revolution. The writings of Sam Adams, the 
Father of the American Revolution, once and 
again declare this doctrine, maintaining that 
the English constitution, in its essentials, was 
not what the Parliament might for the moment 
declare it, but unchangeable; and this very 
unchangeableness was the basis of liberty. 
Helped by their experience of life under a 
written charter of government, the people of 
Massachusetts, in their argument against Great 
Britain, carried forward to a logical conclusion 
the principles of Harrington, Locke, and Sidney, 
and the Puritans of a century before. "In all 
free states," the representatives of Massa- 
chusetts declared, "the constitution is fixed; it 
is from thence that the supreme legislative as 
well as the supreme executive derives its 
authority. Neither, then, can break through 
the fundamental rules of the constitution, with- 
out destroying their own foundation . ' ' r " There 
are, my Lord, fundamental rules of the consti- 
tution which, it is humbly presumed, neither 
the supreme legislative nor the supreme execu- 
tive can alter." 2 Thus the Massachusetts rep- 
resentatives in 1768 expressed the idea of a 
binding constitution and of the source of 

1 Written in 1768. Samuel Adams, Writings, I, 170, 171. 

2 Ibid., 156. 



A Written Constitution 271 

governmental authority superior to govern- 
ment — a constitution unalterable because it has 
its foundation in the immutable laws of nature. 
Few facts in our constitutional history are more 
worthy of attention than this meeting of the 
lines of progress in the announcement of a 
proposition on which new commonwealths 
were to be reared and a great war fought to a 
conclusion: one line runs from the charter of 
1628-29, which incorporated a company, a 
corporation indistinguishable on the surface 
from the great trading companies like the East 
India Company or the Hudson Bay Company, 
whose officers were necessarily limited by the 
terms of the charter; another line runs from the 
discussions of the philosophers and soldiers of 
the seventeenth century in England, who were 
striving to describe a government of laws and 
not of men; another line is to be traced to the 
Separatist foundation of church government, 
the principle of religious individualism, and 
the organization of polity in agreement and 
covenant. 

But the Americans went farther than an- 
nouncement. They fully institutionalized this 
principle of the unalterability and fixity of the 
constitution. They drew up constitutions im- 
pregnated with the principle that liberty exists 



272 The Courts, the Constitution, and Parties 

where government is limited; and little by little 
they came to the fulfilment of the idea that 
government is not the state, that it is the 
servant of the people, that it acts within 
specified limits, and, to sum all, that constitu- 
tions are themselves laws. As a result, any 
act purporting to be done by governmental 
authority is mere usurpation, void, if it goes 
beyond the limit of law. This proposition, 
fairly easy for men who had lived under colonial 
legislatures, strikingly concludes the great 
development of English constitutional history 
toward a government of laws and not of men 
and strikingly answers the anxious questioning 
of the men of one hundred and forty years 
before. It rests, of course, upon the idea, now 
made actual, that the government is not the 
state, and that the fundamental law springs, 
not from government, but from a power superior 
to government, the state itself. In realizing 
this idea and by making the constitution law, 
the courts were for the first time in history 
called in to apply the constitution as law, and 
to sustain the foundations of the state. From 
the mere fact that the constitution was law, the 
courts were under obligations to recognize its 
binding force. 

Although the judges in a few of the individual 



A Written Constitution 273 

states had announced, in some four or five de- 
cisions (1780-87), a principle similar to this, the 
Constitution of the United States was the first 
document distinctly to announce the fact that 
it was law. This declaration, moreover, was 
made pre-eminently to support the arrangement 
of a federal state, to offer reasonable assurance 
that the states would not do anything contrary 
to the Constitution; for it was declared that 
the Constitution, laws, and treaties should be 
the supreme law of the land and the judges of 
every state should be bound thereby — in other 
words, that the judges of the state in deciding 
suits must recognize and apply the Constitu- 
tion of the United States. Only one who has 
studied the efforts of the thinkers of the seven- 
teenth century to reach an ultimate beyond 
government, and to make this ultimate of per- 
manent and binding effect, can appreciate the 
significance of the declaration that the Consti- 
tution is law or see the full meaning of this 
calling in the courts as a third institution of 
government to maintain and sustain the es- 
sential organization of the body politic. 

The idea that the Constitution is law and 
enforceable in courts has occasioned some 
criticism and dispute. For at certain junctures 
even those, who were not unwilling to admit 



274 The Courts, the Constitution, and Parties 

that the legislature was bound by the constitu- 
tion, have asserted that the activity of the 
courts is an unwarranted intrusion, although 
it is based simply on the principle that the 
law emanating from the people is superior to 
any act contravening it. And there has arisen, 
on the other hand, the very foolish idea that 
the supreme court of a commonwealth is the 
only tribunal capable of disregarding the law 
of the legislature on the ground that the law is 
unconstitutional — an idea based on the strange 
notion, that only the highest tribunal is called 
upon to declare and apply the law in distribut- 
ing justice to litigants. It is, moreover, not 
uncommonly said that the legislature is con- 
fined to considering merely the expediency of 
measures, and that the courts alone can look 
into their constitutionality; but this is another 
absolutely illogical proposition — as if the legis- 
lators themselves were under no obligations to 
endeavor to execute the trust of the people and 
to keep within the bounds of activity marked 
out by the people in the making of the consti- 
tution. But possibly the most illogical and 
dangerous of the recent doctrines is the decla- 
ration that an administrative officer does not 
render himself personally liable by the enforce- 
ment of an unconstitutional law or administra- 



A Written Constitution 275 

tive act. 1 Such a doctrine at once undermines 
the principles upon which the rights of the 
individual rests. It neglects the fundamental 
notion that each man is responsible for his own 
wrongs, and that an officer acting beyond the 
limits of his constitutional authority is not an 
officer, but a personal trespasser. How shall 
we preserve "a government of law and not of 
men," if we cannot reach the officer who carries 
out an illegal act ? 

INDIVIDUALISM AND PRESENT PROBLEMS 

At the beginning of the twentieth century 
we have come, in silence or in noisy disputation, 
consciously or unconsciously, to doubt some 
of the fundamental principles on which our 
institutions have rested. As I have already 
said, doubts have arisen in the minds of some, 
who appreciate the nature of our constitutional 
assumptions, as to whether it is possible for a 
modern state to do the work with which it is 
oppressed if it is to continue on a basis of 
individualism. In some particulars this ques- 
tion has arisen with regard to the application 
of criminal law. Our constitutional declara- 
tions were framed as the result of centuries of 
unjust and arbitrary treatment of the accused, 

1 See Brooks vs. Mangan, 86 Michigan 576. 



276 The Courts, the Constitution, and Parties 

when the government was supposed to be the 
enemy of the individual. In enforcing the 
constitutional privileges it sometimes appears 
as if the state had forgotten that it was quite 
as much its duty to convict the guilty as to 
protect the innocent. To the laymen there 
would seem to be no reason for the continuance 
of the individualistic atmosphere of criminal 
law in a country where crime is rampant, and 
where the accused, if arrested, finds oppor- 
tunity to take advantage of numerous and 
unimportant technicalities — in a country where 
the law's delay is for the assistance of the 
predatory and the unsocial. 

But more distinctly we have come to doubt 
whether men can do their duty to man if they 
are hemmed in by the restrictions of individual- 
istic law. Those who work in the slums of the 
large cities and give their lives to elevating and 
comforting their fellow-men, who see the horrors 
of the tenement and the sweat shop, who come 
face to face with what misery can be wrought 
by the unbridled energy of avarice and selfish 
greed, demand now and again, with an energy 
that comes from conscientious conviction and 
whole-hearted devotion to right, restraints upon 
individual privilege of contract, and in reality 
demand a total surrender of the old-fashioned 






A Written Constitution 277 

notion that one can do what one will with one's 
own. That such demands go too far many may 
believe; for, after all, the doctrine of the police 
power is now so widely developed that the 
state has the right, supported by decisions, to 
prohibit individual action or to restrain the 
personal right of contract, where action or 
agreement appear, in the opinion of legislatures 
and judges, to be distinctly detrimental to the 
public weal. Some of the recent decisions of the 
federal Supreme Court 1 declare that the police 
power extends to acts which are conducive 
to the convenience and prosperity of the com- 
munity, and not simply to the prohibition of 
what may be distinctly detrimental to the 
public health or safety. On such an opinion 
as this the courts may, it appears, support any 
state law which would seem on its face con- 
ducive to the public well-being, and the old 

1 "In that case," says the Supreme Court of the United States, 
referring to the case of C.B. 6* Q. R.R. vs. Illinois, 200 U.S. 561, 
592, "we rejected the view that the police power can not be exer- 
cised for the general well-being of the community. That power, 
we said, embraces regulations designed to promote the public 
convenience or the general prosperity, as well as regulations 
designed to promote the public health, the public morals, or the 
public safety." — Bacon vs. Walker, decided February 4, 1907 
(Justice McKenna). Under this doctrine any interference with 
private conduct would be rightly regulated by legislation if it 
happened to strike the court as substantially helpful to the 
convenience of the community. 



278 The Courts, the Constitution, and Parties 

individualistic theory is reduced to a point of 
view from which to approach the consideration 
of a governmental act. 

This proposition in its wider application has 
had to make way against all sorts of strenuous 
opposition, against learned briefs from able 
lawyers who base their arguments on old con- 
ditions, and who start with the old idea that the 
function of government is to keep the peace and 
allow individual initiative and individual right 
of contract full sway. Moreover, there has 
arisen constant necessity for watching narrowly 
this power of the state, for it is often invoked 
not for the common good, but for the supposed 
advantage of classes and cliques. If a law to 
limit the hours of work in bakeries, like that 
of New York recently passed on by the courts, 
has for its purpose, not the uplifting and pro- 
tection of the health and well-being of the 
community, but the giving of advantage to a 
certain class of workmen without regard to 
rights and desires of the rest, or if it is merely 
an attack on an employer 'slight of contract, it 
can hardly be rightly supported as an exercise 
of the police power, which has in recent years 
made such inroads upon the notion of unre- 
strained individual struggle. This growth of 
the police power is a striking development of 



A Written Constitution 279 

social rights in opposition to the assertiveness 
of unchecked individual privilege, and if the 
individualistic interpretation of our constitution 
and laws is to abide, it is because, by the exer- 
cise of the police power, a new principle of 
collectivism has become dominant and con- 
trolling in cases of a clear and absolute need. 
This principle of correction is antithetical to the 
doctrine of socialism in spite of its similarities; 
it proceeds on the notion of personal ownership 
and personal right of determination; but it 
controls individualism by considerations of 
public well-being and convenience, and, rightly 
applied, puts the interests of the state above 
the interests of any of its members. 

In developing and applying the police power, 
the courts have had a new duty that has almost 
taken them from the field of law; and, if the 
power is to be rightly and effectively used, it 
would appear that time and again the judges 
must be guided, not by precedent, but by sense 
of substantial justice and by considerations 
which appeal rather to their intelligence as 
statesmen and wise humanists than to the 
learning of book-read lawyers. If the power 
is to be rightly and effectively used, I say, for 
by this route of encroachment on niggardly, 
selfish, personal greed, the state, the main body 



280 The Courts, the Constitution, and Parties 

of the people, can reach, if it can at all, the 
popular care for the common well-being, with- 
out totally undermining in theory the principles 
of individualism underlying our laws and con- 
stitutions. It appears, indeed, that the courts 
and lawmakers, by one of those startling in- 
versions that occur in human history, have 
been irresistibly called to grasp and promulgate 
a new doctrine of natural right — new, at least, 
as compared with the old doctrine of the inde- 
pendents, of Sam Adams and Thomas Jefferson 
— not the doctrine of the right existent in a 
state of nature, which existed before society, 
and for the protection of which society was 
established, but the right of substantial justice 
to society itself; and in the declaration of what 
government can do and what it cannot do, the 
sense of this right, like the old natural right, 
depends, when all is said, on a feeling for justice 
and not on humanly ordained law or statute. 
There is need once more to revert to the abso- 
lute as shown by the reason. 

FEDERALISM AND LAW; RECENT CRITICISM 

Within the last few years we have come 
almost to doubt the wisdom of the Fathers in 
trying to build up a great empire on the prin- 
ciple of law, in trying to form a great federal 



A Written Constitution 281 

state where powers of government are distribu- 
ted between the center and the parts, and in 
basing that distribution on a law unchangeable 
save through a combination and an effort diffi- 
cult to attain. We have seen how out of our 
Revolutionary struggle came the states with 
constitutions recognized as law; and this legal 
foundation constitutes one of the two or three 
distinct contributions of the Revolution in its 
constructive aspect. There came into exist- 
ence, too, a democratic empire founded on new 
principles. In the course of the Revolutionary 
argument certain characteristic differences of 
opinion between England and America showed 
themselves. In England the contention was 
for an empire with all power gathered at the 
center; all local power was to be exercised of 
grace and not of legal right. The Americans, 
in one form or another, demanded a legal 
empire, in which the localities, the states of the 
empire, should have their assured privileges, 
resting on no caprice of the central authority. 
After the Revolution two empires were in 
existence, both the products of English history; 
one was built on the principle that all legal 
power was at the center, however meagerly 
such power might be used, and that an empire 
could be reared under the guidance of oppor- 



282 The Courts, the Constitution, and Parties 

tunistic common sense and under the tutelage 
of justice. On this basis England has suc- 
ceeded, and, following the lamp of experience 
and led on the whole by wisdom, has created 
and governed a stupendous empire. America's 
course has been different. Even before the 
Constitution was formed, her new colonial sys- 
tem was formulated in the famous Ordinance of 
1787, which was fundamentally an unchanging 
law, as far as the opportunities of the time 
permitted or appeared to permit. When the 
Constitution was adopted, the new federal state 
came into existence, having for its most ele- 
mentary idea the distribution of power between 
the center and the parts of a far-reaching demo- 
cratic empire, a distribution made permanent 
by law and not to be varied by opportunistic 
reasoning or by appeals to temporary or eternal 
justice. 

The continuance of a great federal organiza- 
tion, its bounds and partitions firmly marked 
by law, must depend on the accuracy with which 
that law distributes authority between the 
center and the parts. If the distribution is in 
accord with a mere temporary condition; if it 
does not leave to the states the powers that are 
there appropriately exercised; if it denies to 
the central government the control of subjects 



A Written Constitution 283 

really general in character; if there is no proper 
room for local self-determination; or if, on the 
other hand, the impulses and desires of the 
great body of the people find themselves 
hampered by local obstinacy, local incom- 
petence, or local selfishness and greed; if, in 
short, the distribution is not based on adequate 
and abiding justice and need, there is likely 
to arise conflict, disorder, uncertainty, and 
confusion — I do not mean that there will be 
war necessarily; but there will be the jolting, 
jarring, and rumbling of ill-adjusted machinery, 
the presence of political disorders which suggest 
inappropriateness of governmental system. 

The effort to continue uninterruptedly in 
accord with a federal Constitution drawn up in 
days of individualism, and distributing author- 
ity between the government and the states, a 
Constitution made at a time when the states 
were living in comparative isolation, before the 
railroad, before the telegraph, before the thou- 
sand and one changes that have broken down 
state barriers in fact and welded us in reality, if 
not in law, into one mass in many social and 
vital particulars — the effort to continue unin- 
terruptedly on the basis of such a law has pro- 
duced difficulties and demanded numerous ad- 
justments. These adjustments have been made 



284 The Courts, the Constitution , and Parties 

easy in part by the general terms in which the 
Constitution of the United States is framed, 
making it unnecessary to follow literally the 
ideas that were present in the minds of its 
framers, who could not of course foresee one- 
hundredth of the future development or imagine 
even faintly its meanings. The only vital 
changes made in the Constitution by formal 
amendment since its beginning have been 
directed to lessening the competence of the 
state, not to increasing the vigor or the legisla- 
tive scope of the national government. It is 
a striking fact, that, even if the states are now 
declared to be, because of their spatial limita- 
tions and their legal limits, unfit for under- 
taking new duties which have been brought 
about by the national expansion of industry, 
the state constitutions have been frequently 
amended to adapt them to new phases of 
thought and new needs. They are today 
almost the best indications of change of public 
conditions in the last hundred years, while the 
Constitution of the United States has been 
altered but once radically, and then for the 
purpose of calling in national power to restrain 
state activity, not to increase its own legislative 
competence. Were it not for the Fourteenth 
Amendment, there would today be almost 



A Written Constitution 285 

nothing the state could not do through its con- 
stitution in disregard of individualistic doctrine. 
Can our elastic federal Constitution, framed 
under conditions so different from those now 
existing, continue to be respected, in so far as 
it limits the competence of Congress? Many 
things have been done in the past and are done 
daily that are so far in advance of any concep- 
tion of the Fathers, that we find difficulty, by 
processes of devious ratiocination, in reconciling 
them with the idea that the Constitution is a 
document of enumerated powers. But these 
changes have come slowly, and we have 
thought that we were still clinging tenaciously 
to the principle of law and the theory of con- 
stitutional limitation. Now, however, we are 
frankly told that the great fact of a national 
conscience, national will, and a national need 
must be recognized; if the states cannot indi- 
vidually do their duty, it will be done for them. 
This frank statement is not, as I conceive it, a 
threat, at least not a declaration of any imperi- 
ous purpose to disregard the law or arrogantly 
to sweep state rights into the muck heap. It 
is an honest, clear-headed avowal of a very 
evident social truth: state negligence, state 
incompetence, state selfishness will not be 
permitted to stand in the way of overpowering 



286 The Courts, the Constitution, and Parties 

national desire and a demanding national 
conscience; to say so is only to speak plainly 
what students of history know. The preserva- 
tion of state rights depends, as ever, on the 
performance of state duties. If local self- 
government, as exemplified by the state capa- 
city for self-management, is still of value, it 
must be maintained by unselfish devotion to 
right and justice. 

In some particulars it may be that the nation 
will assume powers simply because they cannot 
be exercised by the states. We may find the 
national government taking charge of all trade 
and industry; we may see a law compelling all 
corporations engaged in commerce to reorganize 
under a federal charter; we may discover that 
insurance is commerce and that insurance 
companies doing business outside of a single 
state are forced to accept national regulations. 
We may, moreover, find other powers assumed 
by the national government because the states 
do not exercise considerately the powers they 
have; we may conclude that no individual 
state should be allowed to create trusts as a 
business, and that manipulation of securities 
is subject to national control. We may think 
that state marriage and divorce laws must not 
be made without consideration for the beliefs 



A Written Constitution 287 

(and shall I say the rights?) of the people of 
other states. We may exercise the national 
power to prohibit child labor in local factories. 
But it should be noticed that in all this there 
are several serious dangers. In some way we 
often go on the supposition that the federal 
authority is not of ourselves, but something 
apart and above our impulses; and this is 
simply destructive of the spirit of self-govern- 
ment. If the people of the state are on the 
whole derelict about duties that can be per- 
formed through local law, can we have assur- 
ance, that the authorities at Washington will be 
superior to unwholesome influence and incom- 
petence? Much of the demand for national 
interference comes from a curious unreasoning 
dualistic conception, as if the national govern- 
ment were a power disassociated from the 
people of the state, and as if the people of 
the United States were not also the people 
of the states. We forget also that because of 
our complicated system of checks and balances, 
because of an administrative system without 
ministerial responsibility, and because of politi- 
cal parties with a tremendous organization 
almost unknown to the law, national action can 
with great difficulty be made responsive to 
popular mandates. 



288 The Courts, the Constitution, and Parties 

I cannot refrain from pointing out also what 
everybody must have thought of — the danger 
that comes from a conscious disregard of law. 
If the national government in answer to a real 
national need can assume powers that are not 
granted, not only shall we lose local autonomy 
in considerable measure and surrender to that 
degree our conception of a federal state; but 
we shall consciously give up the idea of a law- 
abiding state and enter once again upon a 
government of men and not of law; we shall 
revert, in other words, to the condition against 
which the Fathers struggled and against which 
the forces of liberty were arrayed for centuries 
in English history. If the federal government 
can under pressure reach beyond its legal com- 
petence to do things for the state, there cannot 
in logic be an end; the very framework of 
government itself may be warped and broken 
under the pressure of opportunism and exigency. 
It is easy enough to argue that a president can 
go beyond his constitutional limits because he 
can act more expeditiously than a cumbersome 
Congress. Even now, at least one able, influ- 
ential, and thoughtful journal (I do not men- 
tion the hare-brained variety) is demanding 
" centralized democracy," which is a euphem- 
ism for consolidated government and centralized 



i 



A Written Constitution 289 

authority. But from the highest point of view, 
can there be any greater danger than the con- 
scious breach of confining law, unless it arises 
from the hypocritical pretense of regard for 
law, while one is consciously going beyond its 
limits? Have we reached that stage in our 
fretting against the bars of legal federalism ? 

TWO FUNDAMENTALS UNDER CRITICISM 

It is strange, then, I may say in conclusion, 
that the two fundamentals that were striven 
for so long, the two great ideas which were 
imbedded in our constitutions, and which ap- 
peared to make them the lasting resting-place 
of permanent principles, the product of cen- 
turies of discussion and combat, are now in 
especial peril. To say the least, we are looking 
at them critically and pondering their value. 
Have we outgrown the idea of essential indi- 
vidualism with which our constitutions are 
impregnated, and the great idea of building up 
a competent federal republic, not on opportun- 
ism or a temporary view of justice, but on law P 1 

1 It should, of course, be noticed that this was the essence of the 
Philippine question. The judge that announced the doctrine on 
which the government of the Philippines rests, in a later case 
declared that Congress is limited in its management of the terri- 
tories only by natural rights. Brown, J., in Rasmussen vs. U.S., 
197 U.S. 516, 531. This, it is true, was the early contention of the 



290 The Courts, the Constitution, and Parties 

It was a saying, I believe, of Castelar, that man 
is free when he has to obey no one save the 
law. We may stop to question whether we 
really are free when we see that we are com- 
pelled to shape our actions by all sorts of men 
that prey upon the community. But we may 
add to this the saying, that liberty exists 
under government when there is a standing 
law to live by; and this, which is of course 
the elemental American idea woven into our 
constitutions, means that, if we have liberty, 
government itself must be the slave of law. 
Are we ready in studied advertence or by con- 
scious frank design to abandon this principle ? 
Edmund Burke, the wise and philosophic 
friend of America, in one way heralded the 
successful British empire and ridiculed the 
idea, on which as a matter of fact the Ameri- 
cans reared the mighty fabric of a great imperial 
republic. He cast aside the notion of unchange- 
able law, and of abstract legal right as the 
foundation of political action: "The spirit 
of practicability, of moderation, and mutual 
convenience will never call in geometrical ex- 
actness as the arbitrator of an amicable settle- 
American colonists against Great Britain; but we should notice 
that the outcome of their contention was the establishment of a 
government strictly confined by law. 



A Written Constitution 291 

ment." Let us notice, however, that this 
Titan among eighteenth-century statesmen also 
declared: "I feel an insuperable reluctance in 
giving my hand to destroy any established 
institution of government upon a theory, how- 
ever plausible it may be." 



INDEX 



INDEX 



Adams, John, 8, 80, 260; 

quoted, in 
Adams, John Q., 122 
Adams, Samuel, 72, in, 270, 

280; quoted, 70-71 
Ames, of Massachusetts, 

quoted, 210 
Appeals, from colonial courts, 



Barnwell, of South Carolina, 

quoted, 209 
Beard, Charles A., 37 
Blackstone, William, 94 n., 96 
Bluntschli, Johann, 195 
Bowdoin, James, quoted, 211 
Bryan, W. J., 133 
Burke, Edmund, quoted, 290 
Burke, Judge, 24 

Cabinet, English, 114, 116 
Calhoun, John C, 222, 226, 

230, 231 
Cases: Austin vs. Trustees, 
26 n.; Bacon vs. Walker, 
277 n.; Bayard vs. Singleton, 
46, 74; Dr. Bonham's case, 
92 n.; Bowman et al. vs. 
Middleton, 25, 93 n.; Brooks 
vs. Mangan, 275 n.; C, B. 
& Q. R. R. vs. Illinois, 277 
n.; Colder vs. Bull, n, 16; 
Case of Josiah Philips, 48; 
"Case of the Judges," 28; 
Caton vs. Commonwealth, 42, 
104 n.; Chisholm vs. Georgia, 
220, 221; Clark vs. Tousey, 
101 n.; Commonwealth vs. 
Franklin, 27 n.; Eakin vs. 
Raub, 5 n.; "First Hayburn 
case," 14, 17,99; "Hayburn 
case," 15; Holmes vs. Wal- 



ton, 26 n., 37 n., 41; Hylton 
vs. U.S., 12; Kamper vs. 
Hawkins, 26; Lindsay vs. 
Commissioner, 23; McCul- 
loch vs. Maryland, 217 n.; 
Marbury vs. Madison, 7-8, 
x 3) I 5» 3°; Minge vs. Gz7- 
mowr, 16 n.; Ogden vs. 
Withers poon, 15 n.; Page vs. 
Pendleton, 83 n.; "Parsons 
Cause," 189; Phillips vs. 
Savage, 101 n.; Rasmussen 
vs. lT.5., 289 n.; Respublica 
vs. Duquet, 27 n. ; Robin et al. 
vs. Hardaway et al., 82; 
Rutgers vs. Waddington, 43; 
State vs. — , 24 n.; State vs. 
Parkhurst, 26 n.; Stidger 
vs. Rogers, 26 n.; Taylor vs. 
Reading, 26 n.; Trevett vs. 
IFee^tew, 44, 46 n., 74; Turner 
vs. Turner, 27; £7.S. vs. 
Callender, 16 n.; C/.S. vs. 
Ferreira, 15 n.; i!7.S. vs. 
Fate Tofta 7 , 15 n.; Vanhome's 
Lessee vs. Dorrance, 13, 37 n.; 
TFare vs. Hylton, 13 n.; 
Whittington vs. P0/&, 20, 38 
n.; Winthrop vs. Lechmere, 
101 n. 

Caucus, congressional, 121, 
122 

Charters, of colonies, 248-52 

Chase, Chief Justice of Mary- 
land, 20 n.; quoted, 21 

Chase, Associate Justice, n 

Circular Letter, 70-72 

Clay, Henry, 122 

Cleveland, Grover, 182 

Coke, Lord, 80 n., 81 n., 92 n., 
106 

Colonial Experience, 99-103 



295 



296 The Courts, the Constitution, and Parties 



Compact, Constitution a, 207- 
16,227-35; between govern- 
ment and governed, 213-16; 
formation of, 251-59. See 
also Social Compact 

Confederation, act of Congress 
of, 35; conditions during 
period of , 49, 50 

Confederation, Articles, 203; 
and social compact, 204-6 

Congress, independence, 57; 
and courts, see Constitu- 
tion; Fundamental Law 

Congressional caucus, 121, 122 

Connecticut, charter, 249 

Constitution, denned, 14 n.; 
of United States, and social 
compact, 198, 242; likened to 
social compact 207-16, 218, 
222; interpretation and polit- 
ical philosophy, 230, 235-42; 
Virginia and Kentucky reso- 
lutions, 223-28; judge of 
terms of, 224-27; basis of 
state sovereignty, 230-34, 
242 ; early interpretation, 
234-35; interpretation, re- 
cent, 283-89; altered by 
party system, 113, 135-45 

Constitution, British, 66-70, 
88-91 

Constitutions, and the courts, 
3-107; upheld by courts, 9; 
law, 9-10, 31-36; early 
federal cases, 10-15; state 
cases, 29-30; fixed, 70-74; 
origin, 249-51, 257-61. See 
also Courts; Fundamental 
Law; Natural Rights 

Convention, constitutional, 
state, 260 

Convention, federal, 30; trou- 
ble in establishing judiciary, 
38 n.; purpose in regard to 
courts, 36-38; discussions 
in, 201-7 

Convention, party, 121-23 

Court Decisions. See Cases. 



Courts, and unconstitutional 
law, 3-107; duty to declare 
law void, 6; do not con- 
trol legislature, 6, 39-40, 
57; basis of power, 8, 9; 
early cases, 9-15; decisions 
in state courts, 19-30, 40- 
51; supreme law, 31-37; 
English, 53, 79, 85; inde- 
pendence, 51-63, 65; funda- 
mental law, 67-74; and 
natural rights, 75-85; Eng- 
lish background, 85-92; 
European publicists, 92-95; 
colonial experience, 99-103- 
and executive officers, 53, 
104 

Covenant, 252-55 

Coxe, Brinton, 30 

Crawford, W. H., 122 

Cutting, J. B., 47 

Declaration of Independence, 

191 
Declaratory Act, 63 
Democracy, 153, 154, 159 
Democratic party, 132, 137, 

145, 161, 163, 169 
Democratic state, unity in, 

160-64 
Dickinson, John, 69 n., 208, 

218 

Ellsworth, Oliver, 18, 19, 32 
English Empire, 91, 99-102, 

281-82 
English parties, 1 14-16, 131, 

164, 166, 176 
English Rebellion, 89, 253-59 
European publicists, influence, 

92-93 
Executive officers, control of, 

53, 104; independence, 59- 

61 

Faction, distinguished from 

party, 158 
Federalism, courts to preserve 



Index 



297 



31-33; influence of parties 
on, 135-42; and law, 273, 
280-91 
Franklin, Benjamin, quoted, 

151 
Fundamental Law, 9, 63-74, 
84-99, io5-7 

Government, modern idea of, 
265-67; bound by law, 9, 
63-74, 84-99, 267-75, 280- 
91; of party, 116-20, 155, 
176 

Grant, U. S., 59, 60 

Hamilton, Alexander, quoted, 
18-19; theory of the Con- 
federation, 204, 206; 218; 
quoted, 212 

Hanna, Mark, 128 

Harrington, James, 268, 270 

Hartley, of Pennsylvania, 
quoted, 209 

Hayne, R. Y., 216, 222, 231 

Henry, Patrick, 189 

Hobbes, Thomas, 196 

Hughes, Charles H., 181 

Independents, 252-54 
Individualism, 261-67, 275-89 
Iredell, Justice, 11, 16 n.; 
quoted 74 n. 

Jackson, Andrew, 57, 122, 
123; nullification proclama- 
tion, 231-32 

Jay, John, 220; quoted, 221 

Jefferson, Thomas, 47, 215, 
226, 266, 280; quoted, 227 

Johnson, Andrew, 60 

Johnston, Alexander, quoted, 

237 
Judiciary Act, 8, 17, 18, 32 
Judicial Power, 3-107; 285- 

90. See also Courts 

Kentucky Resolutions, 16, 215, 

222-27 
King, Rufus, 211 



Law, Constitution a, 9-10, 
29-36; individualism in, 
261-67; binding on govern- 
ment, 267-75; federalism, 
280-91. See also Courts; 
Fundamental Law 

Leaders, of party, 133, 173- 

75 

Legislature, bound by the 
Constitution, see Courts; 
Fundamental Law; Consti- 
tution 

Lincoln, Abraham, 237 

Locke, John, 46, 68 n., 190, 
205; quoted, 224, 268, 269 

Lowell, A. L., quoted, 196 n. 

Mcllwain, C. H., High Court 
of Parliament, 86 

McKinley, Wm., 183 

Madison, James, 8; Theory of 
the Confederation, 203, 204, 
206; Virginia Resolutions, 
223-26,228; on sovereignty, 
229-230 

Magna Charta, 26, 86-88 n. 

Marshall, John, 5, 19; quoted, 
8, 9, 217 n. 

Martin, Luther, 19, 38 n., 206, 
219, 220; quoted, 205, 218 

Maryland, charter, 249 

Massachusetts, Body of Liber- 
ties, 88-90; constitutional 
case, 47; resolutions, 70-72, 
270; calls Constitution a 
compact, 211; answer to 
South Carolina, 233; origin 
of constitution of, 248-50, 
260-61 

Mayflower Compact, 252 

Milton, John, quoted, 256 

Minority representation, 164- 
66 

Monroe, James, quoted, 221 n. 

Montesquieu, Charles de Secon- 
dat, baron de, 52, 54 

Morris, Gouverneur, quoted, 
37 n. 



298 The Courts, the Constitution, and Parties 



Natural Rights, 11, 16 n., 
75-85, 259-61, 280; of a 
state, 227. See also Funda- 
mental Law 

New England, influence, 252- 

55 
New Hampshire, calls Consti- 
tution a compact, 211 
North Carolina, conditions, 50 
Nullification, 226, 227, 231-33 

Office, aim of party, 131-34, 

i7i-75 

Ohio, answer to South Caro- 
lina, 232 

Organic philosophy, 195-98, 
230, 236-42; not of the 
eighteenth century, 213, 235 

Organization, of party, 113, 
146, 155, 167, 177-79 

Otis, James, 70, 73, 79, 81, 
92 n., 190; quoted, 68, 80 

Paine, Thomas, 265 

Parliament, controlled by law, 
63-74, 86-94, 105-7; by 
natural justice, 79-84; sov- 
ereignty, 90-91 

Party, no constitutional pro- 
vision for, 112, 152-53; 
a governmental institution, 
1 13-17; function, 113, 173- 
75; problem of control, 117- 
19; funds, 125-28; govern- 
ment of, 117-24, 155; cor- 
ruption, 128; management, 
117-20, 126, 138, 146; prin- 
ciples, 131-35; definition, 
133; coherence, 135-37; 
character, 166-70; centraliz- 
ing influence, 138; consti- 
tutional effects, 113, 135- 
45; organization, 113, 146, 
i55, 167, 177-79; legal 
recognition, 113, 146; desire 
for office, 131-34, 171- 
75; origin, 158-59; distin- 
guished from faction, 158; 



tendency to similarity with 
other party, 165-67; spoils 
system, 124-128; and sepa- 
ration of powers, 175-80 

Paterson, Justice, 13, 37 n. 

Pennsylvania, party in, 144- 
45; charter, 249 

Pinkney, W., quoted, 221 n. 

Piatt, T. C, 128 

Police power, 276-80 

Popular government, 153-85 

President, independence, 58-62 

Principles of party, 130-35; 
160-62, 171, 175-77 

Proportional representation, 
164-66 

Pym, J., quoted, 88 

Ramsay, D., quoted, 209 
Randolph, Edmund, 48 
Rebellion, English, 89, 253-59 
Republican party, 135, 145, 

161, 163, 168 
Revolution, American, prin- 
ciples, 63-107, 189-92, 257- 
61, 281-82 
Rhode Island, charter, 249; 

conditions, 50 
Roosevelt, Theodore, 117, 182 
Rousseau, J. J., 196, 215 

Senators, election of, 140 

Separation of powers, 50-65; 
influence of party on, 175-80 

Sidney, Algernon, 270 

Social Compact, 189-242; in 
the American Revolution, 
189-91; fundamental con- 
ception, 193-97, 217; and 
the formation of the Consti- 
tution, 199-219; applied 
to the Constitution, 221-22, 
226, 227; prevalence of idea, 

251-57 
South Carolina, theories of the 

Constitution, 232 
Southern party conditions, 144- 

45 



Index 



299 



Sovereignty, 196-98, 229-30, 

237-39 

Spoils system, 124-28, 130 

Stamp Act, 80 

State sovereignty, basis of, 
230, 242. See also Social 
Compact 

States, obligations, 285-87 

Stephens, A. H., 231 

Supreme Court, not a special 
tribunal, 6; early constitu- 
tional cases, 8-15; income 
tax case, 57; power to 
declare law void, 3-107. 
See also Courts. 

Swartwout, S., 129 

Taft,W.H., 181, 183 
Third parties, 170-71 
Tucker, Judge, 47 

Varnum, James M., 45, 74 
Vattel, Emmeric de, 27, 46, 

81, 93-94, 196, 205; quoted, 

73 



Virginia, Case of the Judges 

in, 28-29 
Virginia Court of Appeals, 

quoted, 27 
Virginia Resolutions, 16,222-28 

Washington, George, 207 
Waties, Judge, quoted, 24 
Webster, Pelatiah, 201 
Welles, Gideon, 59, 60 
Williams, Judge, 24 
Whig party, 134, 137 
Wilson, James, 17, 19, 32, 96, 
98, 99, 194 n., 202, 204, 206, 
208, 213, 218, 219; quoted, 
214, 220 
Wilson, Woodrow, 181 
Writs of Assistance, 79 
Written constitution, funda- 
mental law, 9; development, 
245; origin, 248; historical 
aspects, 245-91. See also 
Constitution; Fundamental 
Law; Courts 
Wythe, Judge, quoted, 42 



o.a 



7V 



H 258 83 



